Wednesday, 20 March 2013

Day 129: Dispatches from a new front line in the Language Wars

It would not be quite accurate to say that a language war broke out this morning in the penthouse courtroom of Montreal's "Palais de Justice" where the Montreal tobacco trials have been in session for over a year.

More true perhaps to say that the francophone plaintiffs in the case forcibly renegotiated the terms of linguistic surrender that have been gradually imposed on them in this trial by a British tobacco multinational and its Ontario-based lawyers.

The catalyst

Sonia Bjorkquist
It began today at 9:30, when Suzanne Côté (the senior Quebec-based counsel for Imperial Tobacco) rose to introduce yet another partner from Osler's Toronto office. "I told you that there was one more team member," she told Justice Riordan, before introducing Sonia Bjorkquist.

Why Imperial Tobacco's legal team needed yet another substitute on their benches was not explained, nor was any reason given why one of the 60 lawyers working at Osler's Montreal office were not available to represent the company during today's testimony by expert witness on addiction, Dr. Juan Negrete.

What was communicated was that Ms. Bjorkquist had been assigned to manage today's testimony and that she did not speak French.

The fuel

As I have previously reflected (see post from September 4, 20112) this important trial has been conducted predominantly in English. This has resulted in some handicapping to the plaintiff lawyers, most of whom have French as a mother tongue, and who are consequently required to work in their second language.

Several factors may have led to the questionable circumstance where the claims of Quebec smokers are being discussed and decided in a language most of them do not understand.

One reason is that the former company employees who were called to testify mostly came from the senior ranks, which meant that they were more likely than not to be English-speaking. (Welcome to Quebec).

Even the francophone employees who testified mostly elected to testify in English. This is their right - but the suspicion has remained that this right was exercised not out of sincere desire, but after being persuaded during lengthy pre-trial preparations with the companies' lawyers.

Other contributing factors are less unique to this case, such as the inherent gravitational pull towards a common language. All the lawyers speak English, but not all the lawyers speak French. Justice Riordan, despite his impressive eloquence in both languages, tends to default to his mother-tongue, English.

Most of the francophone lawyers on the plaintiff side have not made a fuss about the situation, although it is the type of thing that would draw stern comment in other settings. Only Maurice Regnier, the counsel for the federal government while it was in this case, stuck to his linguistic guns.

The match

The last expert witness to appear for the plaintiffs is Dr. Juan C. Negrete, a psychiatrist who trained in Argentina, taught at McGill and practiced in Montreal for several decades. This is a man who has worked in four languages (Spanish, English, French and Portuguese).

Although Dr. Negrete wrote his expert report in French, his name had been included in a list of English-speaking witnesses provided early in the trial. He had also been deposed (interviewed) in English some years back.

On this basis of these events, Imperial's counsel felt that Mr. Negrete was legally obliged to testify in English, despite the signals this morning that he (or his lawyers!) desired to do so in French.  Ms. Côté asked Justice Riordan to insist that Dr. Negrete testify in English. She offered to show the "authorities" for such a ruling.

The blood pressure on the plaintiff's side of the room began to rise.

Their view was that the witness had a Charter right to testify in the language of his choice, and that his choice of language had been communicated to the defendants well before this morning.

Why had the time used to assemble legal authorities not been spent in communicating Imperial Tobacco's concerns? Bruce Johnston wanted to know. He was almost shouting as he expressed his teams' outrage at the general situation. "This is scandalous -- to force francophone witnesses to speak in English and our francophone counsel to cross examine in their second language!"

Justice Riordan called a pause and left the courtroom.

His departure gave an opportunity for the lawyers to share their heart-felt views of each other in ways not allowed when the court is in session.  It was the first time I have observed such an exchange. There was yelling. There were threats. It wasn't pretty.

The reaction

Some time elapsed before Justice Riordan returned to settle the matter - but even then he did not immediately reveal what he had decided to do.

Instead he canvassed the parties for their position.

* Philippe Trudel referred to the fine print of the legal contracts, pointing out that it confirmed that French was the official language and that it was the right of witnesses to speak in either French or English.

* Ms. Côté was invited by the judge to provide "her best case." (She cited from a Court of Appeal ruling that I was not fast enough to identify.)

* Simon Potter (representing Philip Morris' Canadian operation) said he "didn't take a position" but offered a view which supported his Imperial Tobacco colleagues. He said his expectation had been that the testimony would be in English.

* The remaining party in the case, JTI-Macdonald, remained silent. "You are smart enough to stay out of this one, Mr. Pratte," observed the judge.

For a man caught in a no-man's land in a language war, Justice Riordan looked surprisingly at ease. He leaned back in his chair, smiled gently, and invited the plaintiffs to suggest a solution. He may have hoped they would blink, but this time they didn't suck it up. Philippe Trudel proposed that Imperial Tobacco find an interpreter, and the session be suspended until after lunch.

With no option but to make a ruling, Justice Riordan then leaned forward and made it clear that there was a limit to the accommodation that could be made to lawyers visiting from unilingual jurisdictions. "This is a situation that is singular - that a witness who wishes to testify in French is being asked not to."

He threw the responsibility back at Imperial Tobacco's law team. "This is a situation that is not supposed to happen." He added that the justice system "requires lawyers to be comfortable in French. .. one of the rules of Quebec is that an advocate has to be able to get along in French." He pointed out that there were tests of French language proficiency for lawyers graduating from bar school. (As well as other bar requirements )

The afterburn

The rest of the day unfolded with everyone locked into their positions with respect to language. 

Suzanne Côté began to provide informal translation to Ms. Bjorkquist, a task managed by a professional interpreter in the afternoon. Dr. Negrete testified in French. Justice Riordan switched back and forth between languages, as did the video screen showing documents. The other teams - Simon Potter and Guy Pratte -  were even faster on their feet to make objections lest their colleague be caught in a translation-delay. The plaintiffs resisted the temptation or pressure to revert to English.

(The companies have engaged several experts to counter Dr. Negrete's testimony, some of whom were sitting in the courtroom. No one was providing translation for them.)

The distraction of a translator combined with the residual adrenalin from the morning's altercation may be why the afternoon was more tense and chaotic than usual. 

One of the civilian casualties may have been Dr. Negrete's testimony. A few times during the day he needed reminding that his contribution was limited to providing direct answers to the questions put to him - no matter how provocative the question or the objections put to it. Surrounded by such hostility, it is very hard to remain neutral. 

Dr. Negrete's expert report

Juan C. Negrete
Juan C. Negrete retired from his post of professor of psychiatry at the Faculty of Medicine at McGill University in 2009. This was 42 years after he qualified in psychiatry at the same institution.

In the intervening years, he worked in addictions in a number of cities, and a number of positions, including for the World Health Organisation, CAMH and other important centres in addiction medicine. 

His resumé (Exhibit 1470.3) suggests a rich professional life in clinical practice, research and medical teaching. He was the founder of McGill's addiction unit, where he estimates he treated about 10,000 patients including hundreds of smokers.

His 27 page expert report (Exhibit 1470.1 - English translation also available) provides an layman's explanation of nicotine addiction and the factors that contribute to becoming addicted to smoking. 

His report reviews the scientific steps taken in accepting tobacco addiction, including changes to the mental health categories for disease (DSM) in 1964 and 1993, and later years. (The French language, in which his report is written, uses the term dependence for addiction, which is closer to the more current medical term of "substance dependence.")

In his report, he concludes: "Almost all daily smokers (95%) are dependent on tobacco to different degrees, but the problem is most severe among those who light a cigarette within 30 minutes of waking." During his testimony, he further explained how he arrived at that figure, and how bracketing it with lower confidence estimates would still result in 92% of daily smokers passing a clinical definition of dependency.

Tobacco, he concludes, recruits more addicts than do other substances. Using Canadian statistics, he finds that "more than one-third of people who have smoked cigarettes at any time in their life become dependent," and that this figure is twice as high as for other substances, like alcohol, cocaine and four times as high as for cannabis.

Commenting on the proof

Over energetic objections by the industry lawyers, Philippe Trudel offered Dr. Negrete the opportunity to reflect on some key quotes from exhibits that have been put on the trial record over the past year. 

This exercise not only allowed Mr. Trudel to remind the judge of some of the "hotter" evidence against the companies, but also resulted in Dr. Negrete's validation of some conclusions about these documents.

These documents included:
* Imperial Tobacco's study on youth, Project Plus/Minus, (Exhibit 305) which found that young people who started smoking felt they would not become addicted, but that they soon find "addiction does take place," and that their "desire to quit" is not fulfilled. Dr. Negrete pointed to a recent study of Quebec students that showed how quickly a starting smoker lost autonomy over cigarettes. (Exhibit 1471).

* Dr. Negrete was asked to comment on Philip Morris's 1997 position that nicotine had only "mild pharmacological effects" (Exhibit 981 E). The witness said he did not consider "mild" any drug which was as capable of driving a need for constant and prolonged use. 

*He was shown the same companies 1990 guidelines to staff on how to avoid the use of the word "addiction" in favour of habituation. (Exhibit 846) Dr. Negrete affirmed that within the medical community, the concept of habituation had not existed for some decades before those guidelines had been drafted (since 1964). 

*Other "hot docs" shown to Dr. Negrete included one of the famously destroyed documents -- a 1984 BAT study on nicotine receptors in rats' brains (Exhibit 58-7), and a 1972 acknowledgement by RJR that "The tobacco product is, in essence, a vehicle for the delivery of nicotine." (Exhibit 1407) 

The addiction psychiatrist was asked about some positions on tobacco use that have been adopted by the companies or their expert witnesses. He said that the claim that smoking has a benefit to smokers is a result of allostasis, that led to smokers seeming to function better when smoking. "The brain functions 'better'when an dependent person has that substance in their brain." 

Willpower was not the factor that determined successful quitting, he testified. "Motivation does not predict relapse. It is related to the severity of dependence."  He explained that the relapse rate for quitting smoking was about the same as for alcohol and cocaine in the short term, but that in the longer term, more smokers relapsed than did people who were dependent on these other substances.

At the end of the day, Philippe Trudel had finished his list of questions for this witness. Tomorrow, the witness will be cross-examined by Simon Potter. Imperial Tobacco is expected to take a break of a few days to allow for translation of his testimony before cross-examining this witness.

Dr. Negrete returns tomorrow.