Wednesday, 10 October 2012

Half-day 68: A global campaign comes to Canada

See note on accessing documents at the end of this post.

To make up for a half-day lost earlier this fall, the Montreal tobacco class action trial interrupted its Thanksgiving break week to meet for a half-day on Wednesday, October 10.

It was clear before the day started that the scheduled witness, Ron Bulmer, was no longer expected. The lawyers gathered outside the courtroom were dressed in business suits and not the black robes that are worn when witnesses are present.

Usually the lawyers stay within the invisible boundaries that have been drawn in the corridor outside the courtroom (like the seating arrangements inside the court, the industry lawyers stay to the left/west of the bench and the plaintiff lawyers stick to the right/east).

But this morning lawyers from all six parties were huddled in a tight circle near the window in the far east corner. Their animated corridor negotiations about how to operationalize Justice Riordan's ruling on access to CTMC documents delayed the official convening of the court until 10:00 a.m.

The first item of business when the day finally got officially underway was an update to Justice Riordan on the expectation that an agreement on access would be reached by next week. The tension and fingerpointing of last week had disappeared.

With no witness scheduled for the day (Mr. Bulmer will now appear on October 29th),  the trial continued with the tabling of "orphan documents" - documents so old that there are no longer witnesses available to speak to them.

Gabrielle Gagné is the young lawyer who has been assigned this task on the plaintiffs team, and before she entered the first document the benches had almost entirely cleared out. While she introduced exhibits at the approximately rate of one document every three minutes, only 12 other lawyers looked on. I have never seen the courtroom so empty. The lawyers who have seen these documents for years might not find it interesting, but for those who enjoy watching history come to life, these sessions are a real treat.

A peek inside the industry's war room.

Most of the documents introduced today concerned the industry's coordinated approach to the 1968 hearings by the House of Commons Standing Committee on Health, chaired by a physician member of parliament, Gaston Isabelle. (The Isabelle Committee conducted its study between November 1968 and December 1969, and was the first parliamentary review of tobacco since the Tobacco Restraint Act, which restricted purchases of tobacco to persons over 16, was passed in 1908.)

Canadian tobacco control history has never yet had the symbolism of the "Frank Statement", a public relations exercise designed by Hill and Knowlton to cast doubt on scientific evidence that smoking caused cancer. But the documents introduced in this trial show that the Isabelle Committee prompted the Canadian companies to engage Hill and Knowlton, the Tobacco Institute and others from the same cast of characters that designed the U.S. tobacco industry's fight to keep tobacco products unregulated.

The invisible hand of Hill and Knowlton

During 1969 meetings of the Canadian "Ad Hoc" committee that was the precursor to the CTMC, Hill and Knowlton and the U.S. Tobacco Institute were present or participating in planning ways to influence the testimony given by others to the Isabelle Committee (Exhibits 544D 544C544B - see also 738743745).

Carl Thompson, from Hill and Knowlton's New York office, provided advice on what tobacco farmers and union representatives should tell the committee (Exhibits 736741741A741B741C741D741E).

The U.S. Tobacco Institute provided detailed answers to key questions like "do cigarettes cause disease?" (Exhibit 740), suggesting many different ways of answering "no". (See also Exhibits  746746A746B746C).

Advice also came in from the United Kingdom. Imperial Tobacco received highly confidential guidelines "from a commercial and tactical standpoint" from its head office in the United Kingdom - the same notes were sent to BAT's companies worldwide. (Exhibits 739739A739B)

Paul Paré, sitting beside Gaston Isabelle, smokes a cigarette
as he speaks on behalf of the Canadian tobacco companies - Ex 753
The Canadian companies road-tested their messages in the lead-up to their appearance before the committee in June 1969, which was teh climax of their strategy. (Exhibit 744748747).

When they made their splash at the Isabelle committee, their message was heard. The Globe and Mail reported that the "big guns of the tobacco industry" presented an "imposing brief denying any scientific link between cigaret (sic) smoking and human disease." (Exhibit 749) The Toronto Star reported the industry's message that  "attempts to muddle the blame for man's illnesses on cigarettes may well put off indefinitely the day when cancer and heart diseases may be conquered." (Exhibit 749A) The Devoir reflected that the tobacco industry's scientific findings that cigarette smoking was not proven to cause disease was "not the first time that experts had contradicted one another." (Exhibit 749B).

Relief and self-congratulation followed the appearance of the Canadian tobacco executives. Letters to and from the Canadian companies and their U.S. and U.K. counterparts express "heartiest congratulations" (Exhibit 750751752).

But this may have been only the beginning .... Paul Paré (who headed BAT's Canadian operation) and Alexander Holtzman, the associate general counsel at Philip Morris in New York, followed the appearance with an agreed need to work together more closely. (Exhibit 754)

We can hope that the next time that Gabrielle Gagné brings us new "orphan documents" the story of this nascent conspiracy will be told in more detail...

Another industry defeat at the Court of Appeal

With his recent appointment to the Supreme Court of Canada, Justice Richard Wagner might have felt the need to clear his desk of any remaining rulings he had to make as a Justice of Quebec's Court of Appeal. Yesterday, the judgement he wrote on behalf of his colleagues Justices Allan Hilton and Francois Pelletier concerning a request from the tobacco companies to overturn a July 11 ruling of Justice Riordan was issued. Again the message from this court to the companies was "no". (The ruling is not yet on the Quebec court web-site).

The companies were appealing Justice Riordan's refusal of their request to be able to contact smokers who were members of 'the class' before the trial.

Next week the trial starts a new three week run. Expected on Monday is John Broen, a former marketing executive with Rothmans, Benson and Hedges.

To access trial documents linked to this site:

The documents are on the web-site maintained by the plaintiff's lawyers. To access them, it is necessary to gain entry to the web-site. Fortunately, this is easy to do.

Step 1: Click on:

Step 2: Click on the blue bar on the splash-page "Acces direct a l'information/direct access to information" You will then be taken to the document data base.

Step 3: Return to this blog - and click on any links