Tuesday, 23 April 2013

Day 137: Proof closed.... (in secret!)

Have you ever experienced being called away from the game just as your team was set to make an important play? Or having your baby's first steps witnessed by your mother-in-law while you were stuck in the laundry room?

If so, you will know what it felt like to be a faithful observer to the Montreal tobacco trial, only to have the court room door shut firmly closed at the key moment when the plaintiffs reached an important milestone.

An interrupted 'relâche'

The trial has sat only sporadically during the month of April (the French term "relâche" seems a more dignified term for downtime than "a break"). Today's session had been scheduled to allow former Imperial Tobacco president, Jean-Louis Mercier, to return to substantiate certain documents. Mr. Mercier, it would seem, is a snowbird, and had not returned from wintering in Florida until this past weekend.

As it turned out, however, Mr. Mercier's services were not required. Instead, an agreement had been reached between the plaintiffs and Imperial Tobacco to allow the documents in question to be put on record without this witness.

Without a witness, the courtroom was in "informal" mode this morning as the teams returned to put these documents -- and a few other final touches -- on their proof against Canada's three large tobacco companies.

A smiling team

Today there was an unusually even balance between the number of lawyers representing the tobacco companies and those representing Quebec smokers.

Because the business of the day was relatively routine, the industry legal teams were much reduced - about two per company. On the other hand, virtually all of those who have appeared in court on behalf of the plaintiffs' combined team came out to witness the historic moment as this stage of an enormous trial effort was completed.

Looking relaxed and happy on the plaintiff's side, wearing much less formal garb and far broader smiles than in their official photo taken outside the Palais de Justice last year, were (left to right) André Lespérance, Pierre Boivin [Marc Beauchemin, shown above was not in court today], Gabrielle Gagné, Philippe Trudel, Bruce Johnston, and Michel Bélanger. Gordon Kugler, who is not shown in the group photo, also marked the occasion with a visit to the courtroom.

A day of dotting i's and crossing t's

Ms Gagné managed the first set of finishing touches, which were:
* the introduction (or upgrading in evidentiary status) of documents that Mr. Mercier had been personally involved with (including some 200-plus pages of minutes from CTMC meetings)
* the removal of the "reserve" status from some exhibits following the completion of required paperwork (the sending of "403" notices)

These items were dealt with very quickly. And, as is often the case in this trial, the lack of fanfare is at odds with the importance of the material being put on record.

For example, two exhibits introduced today are the minutes of many CTMC meetings over many years. The several hundred pages of records will soon be available on the plaintiffs' database as Exhibits 433H and 433I. And there are a large number of always-interesting market research reports among those documents converted from "reserve" (i.e. secret) to non-reserve status.

Soon these will join the 3000 or so other exhibits which the plaintiffs have generously made that are publicly available in word-searchable form.

Privilege and death

The last of the issue on the agenda for today was a little less straightforward, and soon resulted in the court-room being cleared of observers (all three of us!).

Under discussion was a document from Imperial Tobacco about which very little has been made public to date.

We know that it was among a series of documents for which "solicitor-client privilege" claims were made before Justice Blanchard before the current trial opened. (Imperial Tobacco's counsel explained last  year that this other Superior Court judge had been brought in to rule on the privileged documents in order that Justice Riordan "not be contaminated." by seeing the material.

We also know that Justice Blanchard ruled that the document's privileged status hinged on whether or not Imperial Tobacco could produce a final version, and do so within a prescribed time limit. The deadline passed, but the document which they produced as the 'final version' (Where We Stand, Exhibit 34) was apparently different enough to make the plaintiffs doubt that it was indeed a related version. Did that mean the deadline had been passed? That Justice Blanchard's ruling should kick in?

Justice Riordan was asked last September to wade in on the process part of the question, but without looking at the two documents in question. He was told that Dr. Stewart Massey, who was scheduled to appear later on the trial for the defendants, would be able to explain the relationship between the contested document and the one produced - "Where We Stand."  He decided that he would save time and trouble (and not "waste the Court of Appeal's time) by suspending the procedural questions until the whole issue could be looked at when Dr. Massey testified.

It was not to be. Stewart Massey died earlier this month. Justice Riordan was to make the call without further evidence.

For the third time, Imperial Tobacco requested that the hearing go "in camera" while their privilege or confidentiality issues were being discussed. For the third time, Justice Riordan granted this request.

This time, however, no one remembered to allow those of us from the peanut gallery to come back in before the ruling was rendered.

The doors were kept sealed as the court moved to the last item of business for the day - the declaration that the proof was closed. And so it was that I missed the big event.

As they headed for the elevators, the plaintiffs' lawyers smiles confirmed the news that Justice Riordan had again ruled in favour of evidence being put on the record. (The document will not be made public, however, until the issue of an appeal is resolved).

The next hearing will be on April 29th (and possibly 30th) during which time the motions of "non lieu" will be argued. Also on the agenda will be further discussion of the scheduling of defense witnesses. After that? Who knows....