Tuesday, 1 May 2012

Day 21 - A tale of two testimonies: Bédard and Descoteaux

Today two witnesses appeared before the Montreal tobacco trials -- Michel Bédard (former head of the industry-funded Smokers Freedom Society) in the morning and Michel Descôteaux  (former VP of public affairs for Imperial Tobacco Canada Ltd.) in the afternoon.

It would be an exaggeration to say that the two Michels gave us an experience of "the best of times and the worst of times," but there were marked contrasts in the testimony of these two friends and former spokepeople on tobacco issues.

The morning was marked by (my opinion) tortuous exchanges between Bruce Johnston, who gave example after example of the Smokers' Freedom Society acting as a provisional army for the Canadian tobacco companies, and Mr. Bédard, who gave example after example of how to avoid answering questions.

The afternoon, on the other hand, was (my opinion) a tightly focused interview between Bruce Johnston and Michel Descoteaux, who provided mostly clear answers about his role in explaining away Imperial Tobacco's decision to destroy scientific documents.

But to begin at the beginning....

The grand seduction ... but who seduced whom?

When Mr. Bédard's testimony resumed promptly at 9:30, it was no longer André Lespérance who was asking questions, but his colleague, Bruce Johnston. The first questions regarded how it was, exactly, that the Smokers' Freedom Society was established.

As he had yesterday, Mr. Bédard gave much of the credit to Pierre Lemieux (a local libertarian and author of a number of essays and books against tobacco control). It was Mr. Lemieux who was the "chef d'orchestre" behind the agreement with the industry to fund the Society. Mr. Bédard seemed a little taken aback when later Mr. Johnston presented him with a document showing that at least one tobacco company president considered that it was he - Mr. Bédard - who had been recruited. (Exhibit).

Dancing on the head of a non-answer

There were many points in the morning when Mr. Bédard seemed to struggle in keeping up with his own story when Mr. Johnston provided documents that suggested a very different version. His statement that Dr. Dollard Cormier's review of the Royal Society Report on Addiction was commissioned without any expectation of results favourable to the Society or its underwriters was countered with a memo from Mr. Bédard reporting the "good news" that Dr. Cormier would "cooperate" and that "his opinions are clear ... tobacco is not addictive." (Exhibit 209)

Similarly, his assertion that the Smokers Freedom Society operated independently of the industry was worn down by multiple documents presented showing that the Society had mirrored the position of the industry with respect to addiction (Exhibits 218, 219), smoking bans, (Exhibit 217) advertising bans (Exhibit 225),  and health warnings (Exhibit 216).  (See also exhibit 214 and 214a)

Frequently, the internal logic of his testimony took the scenic route.

The conclusions of the Surgeon General that tobacco was addictive, for example, failed to persuade him, despite the weight of scientific support it received. "The number did not impress me - I was looking for the strength of the argument," said the man who earlier admitted to having no medical or science background.  On the other hand, he readily accepted as established fact that light cigarettes were less  harmful and that filter cigarettes represented a health improvement.

Smokers are entitled to more information, he said, but only in reference to advertising and not from package warnings or inserts.  Smokers have abundant information about the harms of smoking, he said forcefully, but when pressed to provide an answer, he could not quantify the risks of smoking in terms of number of people killed.

Curiously, the man who had worked hard to blunt the introduction of Canada's first tobacco laws and regulations told the court that these measures were effective at reducing smoking.  The "bouquet of measures" that governments were using - like taxes and smoking bans - will make a difference.

It was enough to try the patience of a judge.  And more than once, Justice Riordan interrupted Mr. Bédard to press him to answer the questions put to him more directly.

Professional liars

Mr. Bédard's testimony, confirmed by several documents produced, showed that the financial relationship between the tobacco companies and the Smokers Freedom Society hindered its credibility. "Generally, people thought that because we were funded by the industry we were professional liars," said Mr. Bédard.

One analysis prepared by CTMC President, William Neville, suggested an approach to this problem. "Whatever we might prefer, there is no realistic alternative alternative to direct industry funding of this program, a factor which can be given varying degrees of de-emphasis."(Exhibit 208)

Toronto Sun, September 4, 1986
As the morning drew to a close, Bruce Johnston showed him a clipping from the Toronto Sun in which -- many weeks after signing a $300,000 a year agreement with the industry, Mr. Bédard tells journalists that  "his group had received $100,000 from Canada's four largest tobacco companies, its unions and tobacco growers and wholesalers." Mr. Bédard said he believed that the journalist had faithfully reported his comments, but did not offer why he had chosen to 'de-emphasize' the amount that he had received. (Exhibit 226)

With the issue of a strategic de-emphasis hanging in the air, Suzanne Coté began a short cross-examination of Mr. Bédard.  She referred him to the agreement between the companies and the Smokers Freedom Society (Exhibit 198), and the clause regarding the payment schedule.  Why, had not only the first two payments of $50,000 been issued? Did this not add up to the $100,000 that was reported in the Toronto Sun?

Mr. Potter's cross examination established that Mr. Bédard had not met with any lawyers before his testimony in the trial, that he had quit smoking cold turkey, and that he had never sought input from the companies with respect to the content of his newsletter, the Calumet. (Exhibits  215215A215B215C215D215E215F215Gf215Gg215H )

The last questions returned to Mr. Johnston.  He returned to the statement in the Toronto Sun that the Society had received money not only from tobacco companies, but also from unions and tobacco growers and wholesalers.  Mr. Bédard acknowledged that he had no knowledge of whether money had come from the unions or tobacco growers ("I cant say because I did not see how the money was obtained"), but acknowledged that no agreement had been in place with the other groups.

The return of Mr. Descoteaux. 

Mr. Descôteaux  was the first witness to appear at this trial - and he testified over the first two weeks of the trial (March 13 - 22). But the man who returned to the court this afternoon, about a month later, was more sombre, and provided answers that were more concise and less ornamented with extraneous detail.

Justice Riordan, who had once ruled that Mr.  Descôteaux  was "attempting to favour his employer of  over thirty years" might have had more difficulty coming to such a determination today.

Mr.  Descôteaux was more casually dressed (his bright red sweater made him stand out in a room of black robes), and in some ways appeared more relaxed.  (Only his deep sighs between questions that were clearly carried over the loudspeakers suggested any feeling of pressure).

He allowed that since he last appeared he had read transcripts of the trial, and attributed to this reading a much clearer memory of the events around a key media event in 1998 when a story broke that Imperial Tobacco Canada had destroyed some of its scientific research papers.

It was this news event on which Bruce Johnston's questions were principally focused. He presented several news stories and probed where Mr.  Descôteaux  had received the information he gave the media.

After having been quizzed on several of his quoted comments to the media, and his limited grasp of the details behind the story, Mr. Descoteaux explained the circumstances he faced when the story broke.   "What we are talking about here is my comments about the facts.  I don't know the details. I hear an accusation. I get the facts to respond. And then once I have the facts I go and communicate them to the public in the course of a press conference and then in zillions of interviews that follow."

What he knew he had been told by Mr. Ackman -- but there was much he had not been told.

Q. Was it your understanding that this type of process had been done before and was done after?
A. Based on what I read here and what I read on the others, it would have been my understanding at the time. That was the information I was given.

Q. Were you told that BAT wanted them destroyed? 
A. No

Q. If all you were doing was cleaning out your files, were you prepared to answer why senior external counsel was involved? Did you know why they were involved?
A. No.

Q. Was it discussed with Mr. Ackman whether Imperial Tobacco had an obligation not to destroy documents such as these if litigation was under way? 
A. I don’t think so.

At four o'clock, Mr. Johnston thanked the witness and ended his questions.  Mr. Lespérance then explained that there were several documents he wished to put on the record. With many fewer objections than had been expressed when Mr. Descoteaux first took the stand more than 300 exhibits ago, another series of documents were put on the record.

Tomorrow, Wednesday May 2nd, Mr. Lespérance will continue to ask Mr.  Descôteaux to assist in the introduction of documents, after which the tobacco industry will have their opportunity for cross examination. At 11:00 a.m., Mr. Mercier is expected to return for more questions.