Tuesday, 14 May 2013

Day 142: The witness calls a time out.

A funny thing happened during the second day of the "defence proof" in the Montreal tobacco trials. The examination of popular historian Mr. Jacques Lacoursière collapsed before noon when this first industry witness said he was unable to continue for the rest of the day.

A rocky start

The day began very much as it had left off yesterday. RBH lawyer, Mr. Jean-Francois Lehoux, and Justice Riordan were locked in a low-key dispute about the amount of court time that could be used during Mr. Lacoursière's testimony to display old news stories without the witness adding any details that weren't already in his expert report. (Exhibit 30028.1) The judge was grumbling, but the lawyer pressed on anyway.

Nor had the subtext changed. The defence lawyers and the judge are still locked in a their unresolved dispute about the amount of court time that can be made available to them to present their case.

All in all, it felt like there was not a lot of goodwill flowing between the defence front bench and THE bench. Not a great environment for an inexperienced witness trying to find his footing!


Mr. Lehoux did not improve the mood by effectively demanding that Justice Riordan reverse yesterday's decision to cut-off the viewing of a half-hour television program.

Once again, the court was shown an edition of Radio Canada's Affaires Publiques produced shortly after the 1964 Surgeon General's report was released. On the panel of guests were two earnest  physicians (a thoracic surgeon and a psychiatrist), the editor of Quebec's version of Reader's Digest (Sélection), and a glamour-puss actress-dramaturge who was struggling to follow medical advice to quit.

Mme Jean Desprez
speaking about her struggle to quit smoking
as part of a panel on on Radio Canada's Affaires Publiques
Pressed by Justice Riordan to explain what it was that was so important to see, Mr. Lehoux identified the decision to quit made by the chain-smoking Ms. Jean Desprez. Sure enough, 23 minutes into the show and a few minutes after the program host gallantly lit yet another cigarette for her, the Quebec comédienne declares that this one will be her last cigarette.

When the screen went blank, the witness was asked to explain the importance of this film to the question of common knowledge.

His answer was surprisingly uninformative - and all the more so in the context of the insistence of the film being shown. He said simply that the program showed that health authorities clearly communicated the harmfulness of smoking and that they had at this time knowledge of all the dangers associated with smoking ("connaissent fort bien...tous les dangers"). The rich pool of other inferences that might be drawn from this program - like the uncertainty expressed by the host - went without comment. Nor was any mention made of what happened to Ms. Desprez and her desire to quit.

And repetition

For the next hour, Mr. Lehoux asked the witness to comment on some of the newspaper articles published during the 1970s that were identified in his expert report and which were the basis of his conclusion that by this time it was impossible not to know about the risks of smoking and addiction.

("Je peux affirmer, en tant qu'historien, qu'il est devenu impossible de ne pas avoir connaissance des dangers pour la santé du fait de fumer régulièrement et de la dépendance que cela peut créer.")

For each article, a nicely presented powerpoint slide was displayed in which relevant passages were highlighted and enlarged. (These slides will eventually be available in a series of exhibits beginning with 30032.1).

The headlines traced the key moments in tobacco control in that decade: 

The World Health Organization declares war on tobacco. The Canadian Minister of Health, John Munro, says that all cigarettes were dangerous. The U.S. Congress receives a 500-page report on smoking. Readers Digest publishes not one but seven articles on smoking.  The British College of Surgeons cautions that 'Every cigarette reduces your life expectancy by 5 minutes.' 

Mr. Lacoursière's answers continued to sound very much like the text of his expert report. He seemed unable to come up with a different way of presenting the same information, let alone tying it to a larger theme or hammering home the points his lawyer was hoping for.

Mr. Lehoux's questions became more obvious and directive ("what does this say about common knowledge"), and his dissatisfaction with the answers from his witness more apparent ("is that all you have to say about this?"). Justice Riordan's head began to sink into his hands.

Trying to adjust

There may have been a discussion about how to put things back on track during the regular morning break. Immediately after the court reconvened, Mr. Lecoursière was asked to explain to Justice Riordan the rationale for going "fastidiously" through these documents. The witness explained that a global view nonetheless required a review at the "microscopic level" He said it was important to go paragraph by paragraph even if it was not interesting.

"I do find it interesting," Justice Riordan corrected him gently, "but I find not useful to have you read over your report. ... It is useful to underline or emphasize, but not to repeat." 

After this, Mr. Lacoursière's answers became even more stilted, and he appeared increasingly stressed. Whether cause or effect, Mr. Lehoux's impatience with his witness also became more evident.

Things came to a head when a 1979 article in La Presse reporting that the estimated Canadian death toll from smoking had reached 28,700 was displayed. To his lawyer's question "why was this so important?"
Mr. Lacourcière fumbled for the expected reply.

Mr. Lehoux's unveiled dissatisfaction and his repetition of the question looked humiliating for the witness. It was an awkward and uncomfortable moment -- by this time Justice Riordan's face had almost entirely disappeared behind his hands.

Finally, on about the fourth try, the witness finally came up with the answer "because it shows people knew" ("les gens connaissent").

He got it! exclaimed Bruce Johnston from the plaintiff's benches, putting on record the trained-monkey feeling of the court. "Have some respect!" Mr. Lehoux shot back - but the next reprimand was sent in his direction. "It is up to me to correct behaviour," Justice Riordan said.

Within a few minutes, a time-out had been called. The witness needed a break. For the next quarter hour, the lawyers gathered in the hallways in two separate caucuses as the witness sat alone on the hard benches that line the 17th floor corridor.

But not long after the court reconvened, Mr. Lacoursière was asking for a longer break. Justice Riordan sounded sympathetic and concerned as he invited him to step back and return tomorrow morning.

Mind the gap

One (accidental?) consequence of this development is that the tobacco companies are no longer on the hook to come up with another witness for Thursday - something they had been unable/unwilling to do.

Instead, the last day of sitting this week will be used to further discussions on the definitions that will be applied to the classes of Quebecers who will be eligible to participate in these suits.

The testimony of Mr. Lacoursière continues tomorrow