Wednesday, 26 June 2013

Additions to the summer reading list

A week has passed since the Montreal tobacco trials adjourned for the summer, but it seems that the legal teams are not yet on a summer break. More signs of work appeared on the plaintiffs' document database  this week. (Don't forget to push on the blue bar "access direct à l'information/direct access to information" to be able to use this wonderful resource)

Eleven thousand news stories 

Exhibit 20065.1671
By Monday this week there were over 11,000 - count 'em!-  new documents.

Most of these are the news reports and other 'reliance material' that had been attached to 12 volume expert opinion of David Flaherty (Exhibits 20063, 20063.1, 20063.2, 20063.3, 20063.4, 20063.5, 20063.6, 20063.7, 20063.8, 20063.9, 20063.10, 20063.11).

These records can be found as Exhibits 20065.1 through 20065.11750. 

It's not entirely clear what further use these record might serve in the trial - other than as dressing to Mr. Flaherty's conclusions that Canadians were informed about the harms of smoking.

Their usefulness in other contexts might be diminished by the challenge of looking through them, with suspiciously scant index data (only title and date) available. Nonetheless, they are a noteworthy addition to publicly-available archives on tobacco issues.

Two new expert reports

The additional reports promised by the defendant tobacco companies were circulated this week, and were made public today.

One of these is by Kip Viscusi - a Vanderbilt University professor who has earned a certain notoriety in public health circles as the industry's go-to-boy. Mr. Viscusi has published a number of articles supportive of tobacco industry positions, and has testified frequently for the industry in U.S. litigation.

His report for this trial (The Role of Wamings and Other Health Information in Smoking Decisions in Canada) was conducted on behalf of Philip Morris Internation/Rothmans, Benson and Hedges and JTI-Macdonald. 

It is not his first contribution to the Quebec court process, however. He previously worked for Loto Quebec when it was fighting a class action related to compulsive gambling that was eventually settled out of court

Mr. Viscusi is another adherent of the proposition that smoking is a rational choice, and says that Canadians have received enough information for decades "to assist them in making rational smoking decisions." What's more, he says, smokers "overestimate the serious risks of smoking."  That's just the teaser in his introduction to his 50 page report. 

The second report on warnings was written on behalf of BAT/Imperial Tobacco by a U.S. consultant, Stephen Young. In his 45 page report, he concludes that the companies did not need to put warnings on cigarettes, "in light of the Canadian government's public health efforts," and that the warnings that were eventually put on cigarettes provided sufficient level of detail. He draws comparisons with seat-belt laws, alcohol and food labelling.

Besides, he says "People smoke (or don't smoke) for a variety of reasons that have nothing to do with consideration of the potential risks" and the warnings wouldn't make any difference anyway.

As my mother would say, put that in your pipe and smoke it!

Thursday, 20 June 2013

Day 156: The day before the summer break

The historian David Flaherty made his third appearance at the Montreal tobacco trials today.

His first - over a year ago - had been the initial first step in the plaintiffs' efforts to put on record the public remains of his quarter-century relationship with Canada's three large tobacco companies. (Mr. Flaherty's September 6, 1988 report on the Four Seasons Project is now Exhibit 1561).

His second appearance last month  was in his capacity as expert witness. On behalf of Imperial Tobacco, he presented his voluminous (literally!) report concluding that "Canadians, including Quebecers, were the most warned people in the English-speaking and French-speaking worlds."  (Exhibits 2006320063.120063.220063.320063.420063.520063.620063.720063.820063.920063.1020063.11)

Although his testimony was mostly completed, Mr. Flaherty's third appearance was delayed to wait for Supreme Court to decide whether it would allow an appeal of Justice Riordan's decision to permit the Four Seasons report. When the highest court gave its thumbs down to the requests, Mr. Flaherty was scheduled back in.

Does anyone besides Bruce Johnston smell fish?

Bruce Johnston picked up his cross-examination, and seemed particularly interested in how Mr. Flaherty had prepared for his report over the decades. He focused on the guidance that Mr. Flaherty had received from legal firms in the U.S. and Canada and on the variances between Mr. Flaherty's two reports and between his his testimony and his reports.

Mr. Flaherty steadily defended his work, and especially his independence as a researcher. The fact that his clients had not provided him with internal documents did not mean that "blinders" had been placed on his research, he said. But he implicitly acknowledged that his report was incomplete, and that "a future historian would have a lot more material at his or her disposal" because the trial had made public information that his clients could have provided him with.

Nor did he agree with the suggestion that the "back story" of the industry's role in spreading disinformation about health consequences of smoking should form part of his analysis. In an impatient tone, Mr. Flaherty repeated his answers from last month -- that he had accepted a mandate, that he had negotiated the mandate, that if the list of documents he wanted for his research had been winnowed down, it was a result of his own research decisions.

He did not seem to see any contradiction between these statements and his report that there had been "a lot of give and take with the law firms I was working with."  Maybe it was just give and give. 

Mr. Johnston expressed some frustration that the plaintiffs had been unable to get a complete record of the reliance material used by Mr. Flaherty - i.e. the 11,751 documents collected by Mr. Flaherty and the other historians working on the project.

A final CD had been delivered only this morning, and Mr. Johnston seemed to be trying to find out of there was a significant reason for the delay. During this exchange Mr. Flaherty revealed that there was no index for his collection. It seems incredible to me that several historians working together over decades to compile a resource of primary material would not have needed an index, but there you go.

"A pretty smart fellow" if I say so myself

With Mr. Flaherty's 1988 report (Exhibit 1561) finally on the record, Mr. Johnston was able to ask the historian about some seeming inconsistencies between this early work and his later testimony. Mr. Flaherty had earlier testified that he never read any trial transcripts, yet in the 1988 he makes reference to reading the historical awareness testimony in the landmark Cipollone trial. "I misspoke," David Flaherty said simply today.

Mr. Flaherty sidestepped any implications that the similar wording between the conclusions he reached after 4 months of work and those he reached after 25 years of effort might be because these were foregone conclusions, or influenced by the lawyers he was contracted to.  He spoke instead with pride in his early research skills. I think I was a pretty smart fellow back then, given how little I knew at the time.

Nonetheless, there were differences between the two reports, and Mr. Johnston drew attention to some of those which now favour the tobacco industry position. One of these was the removal of his 1988 finding that warnings about smoking were "counterbalanced by efforts to discount these modern research studies."

Mr. Flaherty today said he had never believed what he wrote. "I should have written 'even though there was an effort to counterbalance'.. .. It has absolutely nothing to do with what I thought at the time."  He repeated his view that any attempts by the companies to diminish concerns about health had been "drowned out" - or were like a drop of water removed from a swimming pool.

Mr. Johnston asked him about material that had been omitted from his report -- like the secret industry science that had been made public in the book The Cigarette Papers. In the forward to that book, a former U.S. Surgeon General had lamented that a "wealth of .. important information the tobacco industry possessed" about the harms of smoking was withheld, and said this information, had it been known, would have saved lives.

Again, Mr. Flaherty seemed more intent on defending his scholarship than on elaborating his view of history. If he had thought it was relevant, "I would have put it in there" he said with a huffy tone.

True Magazine - inconsequential in Quebec

True Magazine - Exhibit 1237.

Robert Proctor called it one of the
most important denialist papers.
David Flaherty didn't think
it merited a mention
Mr. Flaherty's preoccupation with his scholarship was also echoed in his responses to Bruce Johnston's questions about the industry arranging for pro-smoking articles to appear in the once-popular mens' magazine, True.

Although Mr. Johnston was referring to an article from the 1960s (Exhibit 1237), Mr. Flaherty at first thought the article dated from the 1950s.

Low and behold there were twp such articles - one in the 50s and one in the 60s. Seeing reference to the 1950s article that was similarly industry-friendly, Mr. Flaherty seemed more relieved at not being caught out on a wrong date than at addressing the meat of the question -- whether such publications had an effect.

When pushed for a reason for removing reference to the article in his second report, Mr. Flaherty said it was his "personal experience and judgement" that led him to exclude these reports from his final report. Learning that it was a phoney article was not the reason this tawdry episode had been removed from his report.

"Clearly I didn’t think it rose to the level where it contributed to awareness of smoking and health in Quebec in 1968." ... "If you compare it with an article in Sélection or Readers Digest, it is inconsequential."

The re--examination

To date the only apparent role for Mr. Neil Paris on the vast Imperial Tobacco legal team has been to work with Mr. Flaherty, and it was his job today to reply to follow up on Mr. Johnston's questions. He took only a few minutes to do so.

He asked Mr. Flaherty to confirm that the individual papers, like the article in True Magazine, would not have changed his conclusions. But what about one hundred such articles?

"A hundred articles by the Surgeon General, yes," said Mr. Flaherty. "But a hundred articles by an author in a mens' magazine didn’t cut the mustard."

Mr. Paris tactfully asked his witness to confirm that their mutual client was not credible. Did you take into account the credibility of the Surgeon General? Absolutely.
The columnists? Yes.
The credibility of the tobacco industry? Yes.
It's fair to say that credibility assessments were built into your conclusion? Yes.

A logical conclusion

Exhibit 1546
Mr. Paris' last question to the witness was aimed at the bolstering honour of the many American historians who have worked with the tobacco industry. (The involvement of Canadian historians in support of the tobacco industry in this trial has recently drawn fire within the Canadian historical community).

He showed the witness the list of historians that from the critical review by (Exhibit 1546) that Mr. Johnston had profiled.

"Can you think of anything these historians would have to gain by compromising their standards?" Mr. Flaherty could not, and spoke highly of some historians on the list.

If not because historians working for the tobacco industry were overly coached by lawyers, then what other reason might there be "why a group of eminent historians might arrive at similar conclusions."

"It make sense to me that if you were looking at the same question with a similar set of news paper sources you might come to a similar set of conclusions," said Mr. Flaherty.

With that, he was thanked for his time, and invited to step down from the witness stand.

The road ahead --

In the afternoon, the discussion returned to unresolved issues on how the trial would proceed.

The exclusion of immigrant smokers

Justice Riordan had asked the plaintiffs to adjust their definition of the class of addicted smokers to disqualify all those who, because they were not living in Canada at the time, had started smoking cigarettes made by tobacco companies who are not involved in this trial. This followed concerns expressed by Simon Potter, who represents Philip Morris International/Rothmans Benson and Hedges.

Such an adjustment is in the companies' interests, as it would reduce the number of Quebecers included in the suit and, presumably, reduce any potential liability they might face. And yet -- to a tee - they all protested against Statistic Canada migration data being on the trial record after the plaintiff's proof had closed.

Justice Riordan was not sympathetic to their objections.

"I have the right to impose unilaterally certain restrictions on groups," he reminded them. He said that the "door was open about what evidence would establish" the changes. So far the companies have not provided a substantive response to the recalculation.

New expert reports

Earlier this year, Justice Riordan had authorized two additional expert witnesses on warnings. These reports will be filed before the end of next week.

He had also authorized Imperial Tobacco to conduct its own consumer survey, and had given the same deadline. Today, Deborah Glendinning said this deadline would not be respected, but that they still intended to produce such a report.

The reason for the delay, apparently, lay with Justice Riordan. "The judgments on our pre-defense motions have caused us some concern with exactly where we are on causation. Your reference to invoking presumption and other evidence that is unspecified is causing us to rethink how we formulate this evidence."

Imperial Tobacco will be asking for an extension, she said "not until we see what the class definitions will look like."   

Protecting class members from certain demands

Justice Riordan has previously ruled that the tobacco companies may not demand to see the medical records of the class members. Knowing that the companies will appeal his decisions on future such requests, he asked them to put a system in place so that these appeals were exhausted without delaying the trial.

Today there appeared to be agreement to do this through a test-case. A subpoena for records will be issued this summer, will be challenged by the plaintiffs, and will be debated in late August. Presumably Justice Riordan's ruling on these issues will wind their way through the upper courts over the winter.

Simon Potter, the witness

Mr. Potter was notably absent from the court today, as he routinely is when the issue of his testifying at this trial is discussed. (It was because his name again appeared on Imperial Tobacco's witness list that his testimony was bound to come up this afternoon.)

Justice Riordan said -- again -- that he does not want Mr. Potter to testify. He also signaled that he might not permit it to happen. "Calling an attorney is very exceptional. If there is any other way of getting the evidence in then I am going to require that you favour it."

The Schedule

On May 15, the tobacco companies were told to come back with a schedule that took up 175 days, and not the much longer trial they were seeking. (Imperial Tobacco wants leave to appeal this ruling, and the Court of Appeal will hear their request in mid September).

The revised schedule they circulated earlier this week did indeed come in within the imposed limit of trial days --- if only because they dropped from their estimate any provision for cross-examination and did not disclose how long they would need for class members. (The sequence of witnesses with the time the companies will require is shown below). 

Nonetheless, Justice Riordan did not look concerned. 

He began by complimenting the companies for being efficient with their witnesses to date. (I think he was looking at Suzanne "Speedy Gonzales" Côté as he said this). Their proof had been well organized, he said, and he was pleased with the way the exhibits had been prepared to allow for rapid processing. "I am comforted by this and it will influence my approach."

He repeated his preference for the companies to look for "admissions" as a way to reduce the time required for testimony. He warned that he would not accept empty days, and that the companies must avoid having holes in the calendar.

Deborah Glendinning said that their planning had been hampered by the unwillingness of many government witnesses to speak with them. Justice Riordan offered his help, and wondered whether the federal lawyers should be brought in to help in processing affadavits and coordinating with witnesses. 

The summer break

Justice Riordan, before thanking the stenographer and clerk for their work over the year, emphasized his concern about the length of the trial. "I realize it’s a great pleasure to come to Montreal and come to the 17th floor," he said - but "let's get this thing over." 

With that, the court rose for the summer. The next sitting day is August 19, 2013. Nova Scotia historian, Robert J. Perrins, will testify. 


Future tobacco industry witnesses 

Scientific Knowledge / Government Policy

Dr. Robert J. Perrins  (Expert witness) - 3 days

Imperial Tobacco Witnesses

Andrew Porter (Research) 3 days
Graham Read (Research) 3 days
Gaetan Duplessis (Research, Relationship with Agriculture Canada) 2 days
Michael Dixon (Expert witness, compesnation)  3 days
Andrew Chan (Marketing) 2 days
Jean-Louis Mercier 1.5 days
Anthony Kalhok (Marketing) 1.5 days
Ed Ricard  (Marketing) 2 days
Anne Boswall (Marketing) 1 day
Benjamin Kemball 2 days
Lyndon Barnes (Document Retention)   1 day
Simon Potter (Document Retention) 1 day

Rothmans, Benson & Hedges witnesses

Steve Chapman (product development) 2 days
Gary Black (Product development) 1 day
John Barnett (Corporate policies) 1 day
Other marketing 1 day
Other Executive 1 day

JTI-Macdonald witnesses
Peter Hoult   3 days
Ray Howie (Product design) 2 days
Robin Robb (Marketing) 2 days
Richard Marcotulio (Corporate and Smoking and Health) 2 days
Jeff Gentry (Product development) 2 days
Lance Newman (Marketing) 1 day
Guy-Paul Massicotte (CTMC, ICOSI; Corporate reorganization) 1 day
Mary Trudelle (Marketing  and public affairs) 1 day
Ian Walker (Youth Target Study)  ½ day
Michael Sauro (Compensation) ½ day

Health Canada witnesses

J.C. Robinson  1 day
W.H. Cherry ½ day
Monique Begin  2 days
A.J. (Bert) Liston 2-3 d ays
Perrin Beatty ½ day
Murray Kaiserman 2 days
William S. Rickert 1 day

Possible Health Canada witnesses

DM Bruce Rawson  1-2 days
John A. Bachynsky  1 day
J.L. Fry 1 day
David Kirkwood 1 day
Maureen Law  1 day
Benoit Bouchard  ½ day
David Crombie  ½ day
Neil Collishaw 1 day
Others to be determined

Agriculture Canada
C. Frank Marks  2 days
P. Wade Johnson  2 days
R.S. Pandeya 2 days
J.M. Brandle 1 day
Brian Zilkey 2 days
Dr. Yvan Martel 1 day
Others to be determined

ITL Leaf

Graeme Boswall 1 day
Howard Goode 1 day
Ron Bandur 1 day

Expert Witnesses

James Heckman (Advertising, statistics, lack of impact on class members( 2 days
Richard Semenik (Marketing) 2 days
David Soberman (Marketing) 2 days
Alexander Goumeniouk (Addiction) 1 day
Kieron O'Connor (Addiction) 2 days
Dominique Bourget (Addiction) 2 days
John Davies (Addiction) 2 days
Laurentius Marais (Epidemiology, Statistics and causation) 3 days
Bertram Price (Epidemiology) 2 days
Kenneth Mundt (Epidemiology) 2 days
Sanford Barsky  (Disease, individual assessment) 1 day
Dale Rice (Disease, individual assessment) 1 day
Two  warnings Experts - 4 days
Possible Consumer Survey Expert - 2 days

Tuesday, 18 June 2013

Day 155: The government's duty to inform

Those who think that the current federal government is overly-friendly with industry and who look back fondly on the Trudeau years did well to stay out of the courtroom where Mr. Trudeau's right hand man, Marc Lalonde, was testifying for a second day at the Montreal tobacco trials.

Mr. Lalonde had been called by Imperial Tobacco as a fact witness, and it was his memory of events when he was Minister of Health (1972 - 1977) that was the focus of the questions put to him by Imperial Tobacco's counsel, Ms. Suzanne Côté.

Her questions flowed quickly, as did the exhibits that she entered into the trial record. These were mostly ministerial correspondence, inter-departmental memos, speeches and records from Health Canada which had been culled from the records provided to the tobacco companies by the federal government at an earlier stage in the trial.

By themselves, the documents were a sad legacy from an era when elite accommodation was an accepted form of public administration, and when the task of a Minister of Health, at least as Mr. Lalonde described it, appears to have been to broker between commercial and public interests rather than impose protective health measures.

If the documents wouldn't make you cry, listening to the witness would. Almost without fail, he corroborated the version of history put to him by Imperial Tobacco's lawyers.

Policy set through voluntary agreements with the industry.

Had not Mr. Lalonde boasted to the international community that it was through "voluntary action by tobacco manufacturers" that "several of the legislative objectives suggested in the report" of the World Health Organization had been achieved? (Exhibit 20115)

"Exactly." said Mr. Lalonde today. As he had yesterday, he repeated that he had not wanted to impose legislative controls on tobacco, even when it had been proposed by health groups (Exhibit 20117.1, 20113.1). When asked whether he met with such groups, Mr. Lalonde agreed, but hastened to add "just as I met with the industry."

A health benefit in tobacco advertising.

In 1975, the tobacco industry made a number of changes to its voluntary code, but officials within the health department remained concerned that more needed to be done. They identified the need to "begin consideration within the Department of an overall strategy that would include use of regulatory policies" such as restricting advertising. At the same time, they acknowledged that this might  "eliminate the possibility of using the industry marketing process to promote low tar cigarettes and achieve other health objectives." (Exhibit 20119)

Mr. Lalonde said nothing to day to indicate he had shared concerns about the adequacy of the voluntary code, or that he ever shared the view of any officials who wanted to move towards regulation. "At that time, we were not ready to ban advertising and because advertising would continue in some sectors we could say that the advertising could be used to encourage smokers to consume cigarettes with lower levels of tar"said Mr. Lalonde today.

The informed choice to smoke

In presenting his famous "New perspectives" on health to an American audience in 1976, Mr. Lalonde had stressed the responsibility of individuals for their health as well as the need to guard personal freedoms. "There remain a host of areas - smoking, alcohol, exercise, habits, sleeping habits and the like - where ultimate choice of the individual should prevail. Here some form of regulation can be helpful but governments must also try to inform, educate and persuade, and this is what we are doing in Canada."(Exhibit 20094.3)

Today, he went further when responding to Ms. Côté's question about this view."It was fundamental – the question of choice... It was up to citizens to decide what they want for themselves... A citizen will use information to make an informed decision."

A government desire for lower tar cigarettes

In response to a 1977 letter from a political ally who was taken with the idea of very low tar cigarettes, Mr. Lalonde replied that his department "has made strong efforts to encourage the trend [towards low tar products] in meetings with the tobacco manufacturers." (Exhibit 20139.1, 20139.2)

"The best solution was to not smoke, but recognizing that smokers were going to continue to smoke, it was better for them to smoke cigarettes with lower tar levels," said Mr. Lalonde today. He expressed no reservation about - or even knowledge of - the subsequent views of health authorities that this was a flawed approach. 

The cross-examination

It was well before noon when Ms. Côté had finished asking her questions (After a day and half, she seemed to have everything she needed!). During the remaining hour in the morning session, Mr. Phlippe Trudel asked Mr. Lalonde to reflect further on this era.

Was there really consultation?

He showed the former minister a letter Mr. Lalonde had sent to the CTMC in 1976 (Exhibit 50013). [This document had originally been filed by the lawyer representing the government, Maurice Regnier. Today, a single representative from Justice Canada sat at the back of the room, taking notes. There is no further attempt to protect the reputation of government in this trial.]

Did that letter not suggest that the voluntary code was a "fait accompli" and that the companies acted unilaterally? asked Mr. Trudel.

Mr. Lalonde did not appear concerned. "It would be going a little far to say unilateral – but it is true to say they adopted the code without coming back to us, and I made note of this," he said.

The witness was also shown two agreements agreed to by all the companies, which he said had never been shared with him - even when he was working to ensure that the companies were not subject to action under the Combines Investigation Act. (Exhibit 154, Exhibit 1557).  

Addiction and freedom of choice

Mr. Trudel wanted to know whether the former Minister did not think that the fact that smokers became dependent (as the Minister had earlier stated) might not affect their ability to "choose" whether or not to continue smoking.

With a Trudeau-esque shrug of his shoulders, Mr. Lalonde rejected the suggestion. "A citizen remains someone free and responsible." He said it was "a little like alcohol" and that "if you are in the habit of taking 2 of 3 drinks of scotch per day" it can be harder to abstain.

"The citizen remains in the position of deciding or not to overcome that obstacle [of dependency]. A a citizen is not an automaton - and doesn’t lose the freedom to chose, even if it is harder to quit."

Protecting children

Was the minister aware that most people started smoking as children? Mr. Trudel asked. Why yes, said Mr. Lalonde, which is why prohibitions on targeting youth had been requested in the voluntary code. "We had discussions on this with the CTMC."

And if the resulting code was not ideal, well, "we were satisfied with small, progressive victories," said Mr. Lalonde. 

How cooperative, exactly?

Mr. Trudel referred to a March 1976 letter in which Mr. Lalonde had made 12 requests of the companies  after they had revised their code (Exhibit 20128), and he asked him to look at the response which had been provided several months later (Exhibit 20134). 

Although Mr. Lalonde had reviewed these documents in advance, he had obviously not compared his requests with the reply, and was reluctant to do this on the fly. Justice Riordan relieved him from having to do so, but allowed Mr. Trudel to suggest what is obvious from the documents: "none of the requests were met."

The duty to warn

In 1977, a senior departmental official wrote to the companies to suggest the use of "several different educational messages as is being done in Sweden." The industry responded that they disagreed, saying  that the companies "cannot be reasonably expected to advertise or promote the concept that people should not smoke, or that smoking is bad for you."

"Does that surprise you?" Mr. Trudel asked Mr. Lalonde today. "Not at all. I had no illusions in that respect. ... In a market economy, you can't expect someone to say don’t buy my product."

For lawyers who work on product liability issues, this is a striking comment, and Mr. Trudel pushed the former Minister (and longtime member of Quebec's bar) to explain his view that tobacco manufacturers did not need to provide more information about the consequences of using their products. 

"It is the responsibility of the state," said Mr. Lalonde.

Mr. Trudel: "Do I take it that your position is that the responsibility to warn of the risks was on the state and not on the companies?"
Mr. Lalonde: "If you permit the product to be consumed, you need to use regulations or voluntary agreements to be sure that the information is given to the public."

Mr. Trudel:  "Is it your position that for all legal products, the companies don’t have responsibility to warn?
Mr. Lalonde: "If they have regulations – like in pharmaceuticals ... or insecticides..."

Mr. Trudel: "Are you really saying that it is the state who has the responsibility to warn, and not the manufacaturers?"
Mr. Lalonde: "Or to make the manufacturers do it."

Mr. Trudel had trouble asking this experienced lawyer how this view reconciled with other consumer protection laws. (Questions on legal opinions are apparently out of order). Eventually he asked whether Mr. Lalonde was aware of the "manufacturers' duty to warn" in Quebec's Civil Code.

"I read the Civil Code in my youth," replied Mr. Lalonde. (He was called to the bar in 1955). He eventually conceded "I never pretended that citizens were released from their obligations under civil law."

Close connections

From the way in which Mr. Lalonde spoke of Paul Paré and other tobacco industry officials, it would appear that they were known to each other in Montreal social circles, and that he was acquainted with other Montrealers that influenced the tobacco file.

One of these was the famous Montreal researcher, Hans Selye, who had promoted the view that there were benefits to smoking as it reduced stress. These views had been echoed in a 1974 speech Mr. Lalonde gave to an American audience. "We must recognize that for some people smoking seems to relieve tension and anxiety and perhaps can thereby contribute in some measure to good mental health." (Exhibit 20094.3).

Today Mr. Lalonde acknowledged that he had not been aware that Mr. Selye was funded by the tobacco industry.

Fortunate relationships

It should be no surprise that Imperial Tobacco selected Mr. Lalonde was one of their initial witnesses. He was long viewed by them as a Minister who might say say tough things in public, but who posed no real threat. 

In a 1977 report to BAT (Exhibit 1055), Imperial Tobacco said "We consider ourselves fortunate in our relationships with Marc Lalonde the present Federal Minister·of Health."

The federal statute books are as free of legislation as they were more than ten years ago. All restraints have been voluntary by the industry. The latest restraint was minor again in that the industry agreed to add fine cut tobacco to the products which must carry the Warning notice. Indeed on two occasions the Minister has defended the government's policy of not banning cigarettes (raised when Canada banned saccharine) and the policy of not banning advertising ( which he said would put Canadian magazine publishers out of business) .

Personal relations with the Minister are cordial.  


Mr. Lalonde's testimony had originally been scheduled for 3 days, but was finished in half that time. The court will not sit on Wednesday, and will hold its last day of hearings before the summer break on Thursday. On that day, Mr. David Flaherty will testify in the morning and in the afternoon the list of witnesses for the coming months may be revealed.

Monday, 17 June 2013

Day 154: A long-ago view from the top

For information on accessing documents, see note at the end of this post.

The Honourable Marc Lalonde, PC, OC, QC is the witness at the Montreal tobacco trials most likely to appear in "Who's Who."

This is a man with an impressive political record. Between 1972 and 1984, he held not one but 7 federal portfolios (health, sport, status of women, federal-provincial relations, justice, energy and finance).

By itself, that would justify his commanding a certain respect in most circles. But in the context of this Quebec courtroom, even these qualifications pale beside his place in Montreal legal circles in the decades since he left elected life.

A Montreal Good Old Boy

Marc Lalonde appears before a
House of Commons Ethics Committee
in 2008 .
On paper at least, there are very few degrees of separation between this witness and the lawyers representing the tobacco industry who selected him as their second fact witness, and their first high level government official.

For more than two decades Mr. Lalonde worked at Stikeman Elliot, which not only had British American Tobacco as a client, but where Suzanne Côté, who now represents Imperial Tobacco, was also a partner.

(Ms Côté, who has the task of questioning Mr. Lalonde, moved to Osler and the tobacco file in 2010).

In his current work in international arbitration, Mr. Lalonde remains an associate of Yves Fortier, one of the prominent veterans of Imperial Tobacco's previous legal wars. Mr. Fortier worked on the tobacco file with Simon Potter, who has now moved to McCarthy Tétrault and currently represents Philip Morris International/Rothmans Benson and Hedges. Mr. Pratte, who represents JTI-Macdonald, and Mr. Lalonde shared some very public moments during the Oliphant Inquiry.

Why even Justice Riordan disclosed last week that he had once represented a company on which Mr. Lalonde served on the board of directors, and that the two men had met once or twice!

At break-neck speed

What took hours at the beginning of this trial now takes minutes. At a result both of the direction from Justice Riordan that documents be pre-coded with exhibit numbers and also the plaintiff's strategy of non-opposition, the time it takes to put a document on record has been reduced to a minimum.

This fast process is further accelerated by Suzanne Côté's notable ability to ask questions and move through her notes with stunning speed. (Her speech occasionally has the pace and the even rhythm of an auctioneer - although mercifully the sing-song quality is absent).

A familiar story

The story of the initial moves by the federal department of health (including the first statement by a Minister of Health - 50 years today) have been gone over a few times in this trial. In response to documents presented and questions asked by Ms. Côté, a lot more detail was put on that story.

It was as an assistant in the Prime Minister's office in 1968 that Marc Lalonde was passed a memo from health minister John Munro, who was seeking permission to "seriously examine other methods" beyond public education to curb smoking. (Exhibit 20068). H also had access to minutes of the cabinet decisions, including that which gave John Munro authority to introduce a law regulating tobacco, Bill C-248, to the House of Commons. (Exhbit 20069, 20070, 20073).

As a back-room boy in Langevin Block, Mr. Lalonde would have been more familiar with the political than the health dimensions of the bill at that time. Today, when he described the "many problems with the bill,"  he referred only to political problems.

"There was the question of farmers who were concerned about the impact of a reduction in smoking on their production."  Other opponents of restrictions on advertising included publishers of magazines and periodicals who saw the law as "discriminatory and unfair." Mr. Lalonde said they lobbied against such measures, saying they would "kill" the Canadian periodical industry while doing nothing to stop ads in imported US magazines like Time and Newsweek.  (Exhibit 20072)

Nonetheless, C-248 was introduced in June 1971. It never got far past the starting gate.

Mr. Lalonde did not explain what happened to the bill between 1971 and 1972, or why it was not given second reading in a timely way. He focused instead on what happened after he became Health Minister following the 1972 election. (Mr. Munro was shuffled from Health to Labour portfolio in November 1972).

It was the government's minority status in Parliament following that election, Mr. Lalonde said today, that made it hard for him, as a newly appointed health minister, to fulfill his predecessor's one-time intent to regulate tobacco.

"As a minority government, our objective was to only propose legislation that we were certain would get the support of the CCF/NDP....The rule at the time was to not put forward legislation that was controversial or would be hard to get through Parliament." 

Two years later the Liberals had regained a healthy majority, and Mr. Lalonde was reappointed as health minister. By that time, he said, he his focus was taken up with two other challenges. The first was the reform of social welfare and the other the 1974 Green Paper on a new perspective on health.

Legislating tobacco was no longer in the cards. Instead he found he "could use this bill as a stick to force the industry to voluntarily adopt voluntarily some of its measures." 

"This was the object of many discussions and exchanges of letters and communications the whole time I was minister," he said. "We asked, they resisted. Sometimes we needed to threaten the introduction of a law." 

When Ms. Côté asked him to describe his discussions with the CTMC, Mr. Lalonde described finding himself in the position of negotiating and "even arbitrating among them."  Benson and Hedges (then, as now, owned by Philip Morris) didn't want to accept the voluntary agreement that the companies offered in exchange for a cease-fire on legislation, and the Minister played a role in encouraging them to cooperate. (Exhibit 20090.1, 20090.2, 20090.3, 20093.2, 20102, 20111, 20110, 20103).

He said the companies were "ready to collaborate to put in place the objectives that the government was seeking," although some arm-twisting was sometimes required. "We asked. They resisted. Sometimes we needed to threaten the introduction of a law."

The voluntary code

Ms Côté spent much of the day presenting exchanges of correspondence between the Minister and the companies relating to the establishment and revision of the CTMC voluntary code on marketing. 

Mr. Lalonde confirmed that it was in response to departmental pressure that the companies agreed to change their warning label by adding the words "avoid inhaling". (Exhibit 20096.4, 20096.5)  He seemed proud of the fact that his letters encouraged them to put warnings and tar and nicotine levels on cigarette packages and eventually on tobacco advertisements and that departmental interventions resulted in reductions in tar levels in cigarettes. (Exhibit 20080.1, 20080.2, 20090.1)

"We figured that as long as cigarettes were not illegal, then citizens were responsible for their own behaviour in this area. As it was not a forbidden product, our role was to get voluntary or imposed actions by the industry, to provide information to smokers, and, if possible, to get “safer” cigarettes on the market."

Ms. Côté asked him about a proposal from within his department to put cigarettes under the Food and Drug Act.  (Exhibit 20092.1) This idea was "favoured by several public servants, but not unanimously supported within the department," said Mr. Lalonde.

"I didn’t want to go towards that objective, especially since we were getting where we needed to go with the cooperation of the industry." Besides, he added, it was cheaper to have a voluntary code, as this ensured that the companies kept an eye on each other. A law would require the use of "tons of regulators" and "the cost benefit analysis was heavily in favour of a voluntary approach.

(See also Exhibit 20082.3, 2008320087, 20107.1, 20107.220107.3, 20107.4, 20110, 20111, 20112, 20128, 20130.1, 20130.2, 20134, 20137.1, 20137.2.  20137.3)

Freedom to Choose

Ms. Coté encouraged Mr. Lalonde to say things that would send a chill through public health hearts.

He used the term "freedom" to describe smoking. "It is their [the smokers] choice. They are not necessarily aware of all the implications, but they are exercising their freedom."
Suzanne Côté: "Their freedom to choose?"
Marc Lalonde: "Exactly."

The - maybe -  less hazardous cigarette

A second major theme in the documents presented by Ms. Côté was the development of a governmental research initiative towards "less hazardous" cigarettes. (Exhibit 20079, 20083, 20087)

Mr. Lalonde said he believed this idea originated in his department, and remembered that he had decided to decline the industry's invitation to work jointly on the project. He saw a confict between the responsibilities of  his department and the companies whose "goal was to make profits for their shareholders." 

Mr. Lalonde seemed aware of the prospect that reduced-tar cigarettes might not actually be less harmful if smokers inhaled more of them as a result (compensation). "We talked about the fact that if you reduced nicotine levels too much, [the adjusted tobacco] would have the same result, because people would smoke more cigarettes."

View from the top  vs. view from the middle

Mr. Lalonde follows Mr. Denis Choinière as the second government witness, and was shown many of the same documents and asked about many of the same events.

But whereas the impression left by Mr. Choinière last week was that public servants did what they could in the context of a regulatory vacuum, Mr. Lalonde today talked as though the regulatory vacuum was the optimal outcome.

The passage of time

The events described by Mr. Lalonde today took place so long ago (from 1972 to 1977) that it is tempting to wonder how relevant they are to any assessment of the industry's behaviour in the intervening 35 years. Yet about four in 10 Quebecers who were daily smokers when this lawsuit commenced would have started smoking before Mr. Lalonde passed responsibility for tobacco control to his successor, Monique Bégin.

Mr. Lalonde seemed to have a much clearer memory of events than most other witnesses at this trial. (For an 83 year-old, this is even more striking). He was exceedingly confident in describing events that happened even before Elvis Presley died (or didn't).

If there were decisions on tobacco that had been made on his watch that he could not remember clearly, he did not admit to them. I wondered whether his memory was helped by his obviously careful study of the material provided to him by Ms. Côté.

Mobilizing the friendly

Mr. Lalonde is the 6th industry witness, and his view of history seems to coincide with that outlined by Imperial Tobacco in the concise defence it has filed with the court, and with the story it hoped to tell through its failed third-party action against the federal government. This is the first time since the defence case began that I left the courtroom thinking that the companies were further ahead in telling their story than they had been at the beginning of the day.

The testimony of Mr. Lalonde, originally scheduled for three days, may be completed within two. David Flaherty is tentatively scheduled to appear later this week.

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.

Thursday, 13 June 2013

Day 153: Morning and afternoon? More like night and day

It's very easy when watching this long-running tobacco trial from a seat at the back of the courtroom to get caught up on the performance elements. Which lawyer can get their questions out cleanly, and which can't? Which lawyer can get to a surprising bit of evidence without telegraphing their intent? Which expert witness can take a verbal pummeling and which one is thin-skinned?

I have no experience in how important these things will be at the "end of the day" when Justice Riordan sits down to write his judgement, but at the end of this long day of testimony I left the courtroom struck by the very different skill levels of the two individuals who testified today.

The first - Health Canada's designated witness, Mr. Denis Choinière - distinguished himself by receiving high praise from Justice Riordan for his "herculean efforts," his patience and good humour. (I overheard lawyers using superlatives to describe Mr. Choinière's skills as a witness).

By the end of the afternoon, it felt like the herculean efforts and patience were on the part of those listening to Imperial Tobacco's expert in survey methodology, Ms. Claire Durand. She distinguished herself by being the first witness to repeatedly over-talk the judge and to be forcibly scolded into being silent.

The government shield

RBH has long signalled its view that the actions of the government should shield the company from any liability. In its "concise statement of legal and factual issues" tabled on the eve of the trial last year, it refers to the government more than thirty times, claiming that "RBH’s cigarettes are (and have always been) made, sold and advertised according to laws and policies set, encouraged and approved by the government."  

(A more detailed summary of their position with respect to government actions was outlined in their "action in warranty" claim against the government, which was ultimately dismissed last November).

RBH lawyer Simon Potter spent the morning trying to get Mr. Choinière, who is the first witness from Health Canada,  to agree with the company's interpretation of the documentary record of relations between the industry and government.

To do so, he brought out documents that he clearly felt substantiated the position of the company. Many of these pertained to the government's role in promoting the use of lower-tar and lower-nicotine brand cigarettes.
* Health Canada's efforts over about 15 years following 1968 and to get widespread diffusion of the results of tar and nicotine testing on available brands (Exhibit 20064.88, 30036),
* the establishment of a government research initiative to produce lower-tar blends of tobacco (Exhibit 30038),
* the recommendation to industry that tar levels in cigarettes be "gradually reduced" (Exhibit 50009B)
* its advice to the public as late as 2002 that lung cancer risks were reduced by smoking lower tar cigarettes (Exhibit 30037)
* its sustained pressure on the companies to lower their "sales weighted" emissions of tar, nicotine and carbon monoxide (Exhibit 30039, 30040, 30041, 30042, 30043)
* the willingness expressed by the company to cooperate with government (Exhibit 30044)
* the benefits identified by Health Canada researchers about light cigarettes. (Exhibit 30045)

Mr. Choinière spoke at length about the long and twisted evolution of the government's view on whether some cigarettes were less harmful or should be promoted as such. He emphasized that the "hopes" that drove the early publication of tar and nicotine levels in the late 1960s had completely faded by the mid 1980s, when the health ministry stopped promoting the comparison of cigarette blends in this way and spoke of the efforts beginning in 1999 to remove the term "light" or "mild" from cigarettes sold in Canada.

And as for the documents that exhibited a certain amount of what now could be charitably described as fuzzy thinking, Mr. Choinière was able to confirm that the real view of Health Canada was always much clearer than the specific documents suggested. Health Canada had taken corrective action to have the potentially misleading information removed from the web-site of its sister ministry, the Public Health Agency of Canada.(Exhibit 30037). His colleague's e-mail contained several mistakes (Exhibit 30045).

But who really calls the shots?

Mr. Potter closed his questions by trying to get Mr. Choinière to acknowledge that the views of Health Canada regulators were not always those of government -- and that "there were times when Health Canada had a view, but the government took another position."

As important as this issue is to RBH's defence, Mr. Choinière was saved having to comment on this. "We admit this," Mr. Lespérance interjected.

Mr. Choinière was free to go.

Working within policy constraints

Over the three days of his testimony, Mr. Choinière emphasized the limited choices that were available to departmental officials when there was no policy or legislative authority to take other actions. At first I had just heard this as an explanation of the real-life challenge of someone whose job it is to protect health with one hand tied behind their back.

By the end of the morning, however, I realized that Mr. Choinière's comments consistently reinforced the legal position of the government that it could not be held responsible for policy decisions, and that its execution of the policies had at all times been correct!

The Supreme Court, among others, has said the government is immune for its policy decisions on tobacco, although it might not be immune for how these were put in place. In making these distinctions, Mr. Choinière showed that he was not only able to successfully walk through the documentary mine field laid out for him by Mr. Potter, he could also lay down some barbed wire to protect his testimony from being used to support other claims against the government. A good witness indeed!

An unbalanced story

Justice Riordan is almost unique among Canadian jurists to decide to include the federal government in the tobacco lawsuits, as shown by his decision of February 2012 released after the Supreme Court had made a contrary decision. (Whether he decided to keep them in the ring for real legal concerns, or just to avoid a further delay in the trial has been a source of speculation).

Today, the judge showed a great interest in the events described by Mr. Choinière and he clearly believed this witness. This was a teachable moment and a trusted teacher for the Court to learn more of the missing story of Health Canada's relationship to tobacco use in Quebec.

But the moment passed without further instruction.

The plaintiffs decided to ask not a single question of Mr. Choinière. Nor were there any questions from government lawyers. (Months ago, the federal government decided not to participate further in this trial.)

The absence of the federal government's counsel at earlier stages of this trial, Mr. Maurice Regnier, was much missed. With his ability to quickly correct the record, I like to think he would not have allowed the documents presented by Mr. Potter to go unrebutted.

(Exhibit 30044r was introduced as an example of RBH's willingness to cooperate on restrictions on the use of "light" on cigarettes. Absent from this court record is the threat in the same year by its owners, Philip Morris International, to claim damages under NAFTA for the loss of their property rights if this happened).

Mme Durand's second attempt

The afternoon session was supposed to start with a resumption of Bruce Johnston's cross examination of this Imperial Tobacco expert witness. But before that happened, Ms. Durand (who seemed to have an idiosyncratic view of how court procedures work), asked to provide more information on a topic she had been asked about yesterday.

It concerned the issue of whether a question about how many cigarettes of your own brand can you can safely smoke was a way to assess knowledge or opinions. She allowed today that if the question were prefaced by a statement like "According to Health Canada," then it could be considered to test knowledge, but that otherwise it tested perceptions.

She was not the only one to pick up a thread from yesterday -- Justice Riordan also returned to his obvious difficulty in understanding why the analysis prepared by Mr. Christian Bourque (Exhibit 1380, and the subject of Ms. Durand's critique) was not valid.

"If you want to know what was in the head of the companies ... they get the information, they read it, and not being specialists, they use this information to get an impression of public knowledge." He mused out loud that "for 20 years, twice a year, they asked the same question" before signalling "Well, that's a question for me to work out."

Bruce Johnston might have considered that he needed to get nothing more on the record at that point, but he nonetheless persevered in trying to get Ms. Durand to agree to the logic behind the insights that Mr. Bourque had taken from the industry's survey, and to provide more information on her own work.

This witness' was clearly reluctant to agree with any of the questions put to her by her client's opponents. The result was some seemingly contradictory statements. She used a chart produced by Mr. Bourque to counter the suggestion from Mr. Johnston that the companies had surveyed attitudes that might influence smoking rates. The chart showed that there was no such relationship, she said -- seemingly forgetting that yesterday she said that the data underlying the chart was so unreliable that no inferences could be made from it.

Her testimony came at the end of a long week, and it was tiresome to listen to. Justice Riordan began to prop his head in his hands, and showed his irritation with her answers by directing the "next question" to be asked.

The only thing that livened up the afternoon was her inability to understand that such a direction was a cue for her to be quiet. "Madam. Madam!! MADAM!" The exceedingly polite judge was forced to raise his voice over her refusal to stop talking.

Two long hours later, the day was over.

Next week looks like an exciting one. The former Minister of Health, Marc Lalonde will appear and so too might David Flaherty. The industry is expected to produce its revised calendar for the year ahead by Wednesday. The companies will respond to a proposal to reduce the scope of the class of addicted smokers by Monday.

Wednesday, 12 June 2013

Day 152: Opinions on opinions about opinions

Most pollsters hope to be considered correct 19 times out of 20. But as the experts hired by the tobacco industry would have it, the pollster who reviewed the data collected by Imperial Tobacco over decades was pretty much wrong in every conceivable way.

Mr. Christian Bourque first appeared at the Montreal Tobacco trials almost 5 months ago, bringing with him a report (Exhibit 1380) on secret surveys conducted by Imperial Tobacco over decades into smokers' knowledge and beliefs about the harms of smoking.

The report of this plaintiff's witness has already been the subject of stinging criticism from a survey methodologist now based at Oxford University. Mr. Raymond Duch, when he testified last month, even levied the charge that "Mr. Bourque is misleading the Court" with his conclusions.

A second round of criticism against this well-respected Montreal pollster was launched today with the appearance of Claire Durand, a professor of sociology at the University of Montreal. (Mr. Duch worked for JTI-Macdonald and Rothmans, Benson and Hedges. Ms. Durand was hired by Imperial Tobacco).

Her report (Exhibit 20066) concludes that Mr. Bourque's work was flawed from the get-go, as it suffered from "methodological problems" and deviated from "the rule of scientific neutrality."  She goes further, taking a fine-tooth comb to enumerate what she sees as many flaws in his work.

Claire Durand
Ms. Durand is one of the few women to have appeared at this trial - but it was in other regards that she was a most unusual witness. Despite having attended the court during the appearance of Mr. Bourque and Duch, she failed to have picked up any tips on the particular dance that takes place between lawyer and witness and judge.

The redoubtable Ms. Suzanne Coté had her job cut out for her with a witness prone to ramble, and obviously not skilled at taking guidance or responding to cues to be silent when enough has been said. (As someone similarly afflicted, I say this with some sympathy - but it certainly did not help her clients' cause!).

A speedy exposition kept on track

In the morning, with her trade-mark speed and organization, Ms. Coté took Ms. Durand through her principal criticisms of Mr. Bourque's synthesis of industry data.

The criticisms were plentiful, and seemed more forceful with the pace with which Ms. Coté moved her witness through the set.

Ms. Durand said that Mr. Bourque's report was incorrect in:
* assessing smokers' perceptions as these were not properly measurable,
* drawing inferences from quota-based samples that should only properly be made for randomly selected samples,
* failing to clarify that only smokers' views had been gathered,
* not properly citing sources,
* failing to provide a list of events to which he said the industry was reacting,
* attributing statistical significance to numbers that could not be properly compared,
* committing ecological errors and displaying the Robinson effect,
* improperly attributing results to a provincial or regional level when in fact they were based on surveys of urban dwellers only.

Oh, and yes, he was biased too.

Her presentation was on the court record well before lunch time.

A derailing cross-examination

Bruce Johnston asked for - and received - an extended lunch break to allow him to prepare for his cross-examination. When the session resumed at 3:00, he entered the court with papers in hand and a spring in his step.

Body language in this court is pretty subtle, but it is hard for even the most poker-faced teams to hide it when they are having fun or when things are going quite wrong. By the end of this afternoon both were evident - the enjoyment on the plaintiff's side mirrored by red-faces and slumping shoulders on Imperial Tobacco's bench.

Ms. Durand seemed to be the victim of her own testimony. She painted herself into a corner by stating views in such absolute terms that they either defied belief, or left her open to embarrassing exposure

Perhaps unaware that she was being goaded into saying increasingly ridiculous things, she engaged in lengthy and almost argumentative replies with Mr. Johnston. When Ms. Coté tried to intervene with objections, Ms. Durand ignored her lawyer and kept on talking - not just once, but a few times.

How many cigarettes are safe:  Is that Fact or Opinion?

Twice a year, at the end of its long survey of brand preferences, Imperial Tobacco asked smokers an open ended question: How many cigarettes of your own brand can you safely smoke without harming your health?

Mr. Bourque had observed that the results showed that "it was clear that not everyone was aware that smoking cigarettes - even a small number - could have a negative impact on their health."

Mr. Johnston asked Ms. Durand how she would answer the question, but she demurred and repeatedly refused to answer.  ("I am an expert in asking questions, not answering them," she said.)

The problem, she said, was this was NOT a factual question, and because it did not have a verifiable answer, it could not properly be answered. Her answers began to be a little tangled, as Mr. Johnston asked at length how these questions were different from those he was reading from the notes to the courses she taught.

The real kicker to her lengthy explanation that these questions were flawed in not being based in verifiable fact was revealed to the witness when Mr. Johnston showed her the testimony of Mr. Duch on the same set of questions.

Mr. Duch had complained that such questions were not a good indication of beliefs because they WERE factual questions.

Two industry experts -- two opposing views -- one entertaining court moment.

So do cigarettes cause cancer? And why can't you say so?

There is some poetry in asking polling questions of a polling specialist, and Mr. Johnston spent some time putting Ms. Durand through the experience of being asked some of the questions that had been tracked by Imperial Tobacco and others.

Having talked at length about respondents who "didn't know", Ms. Durand now exposed herself as a member of that tribe. She "didn't know" how many cigarettes one could smoke safely. She "didn't know" whether smokers had a shorter life.

When Mr. Johnston asked her whether cigarettes caused cancer - yes or no -  she hesitated for a long time. She tried to deflect from her difficulties by saying that she suffered from the professional disease of not wanting to answer questions "yes" or "no".  ("I noticed!" said Justice Riordan, but kindly).

 "I would refuse to answer [such a polling question]" she said.

The company is arguing that "everyone knows" that cigarettes caused cancer. But some are curiously reluctant to say so!

 Questions from the bench

Imperial Tobacco tracked smokers'
perceptions of health risks - 
Ms. Durand says the results were unreliable

It was Justice Riordan who - more than once today - raised the question that the critics of Mr. Bourque's report have steadfastly avoided: What difference did it make that the companies' studies were flawed if the believed they were good and kept them in place for decades?

"Nonetheless, the companies were paying for these studies," he pointed out. Even if they were poorly done, you could still say it was what the companies thought was going on." [very rough translation]

"I can't speculate on what the companies believed," Ms. Durand replied. "But if there was a good research service, it would have told the companies that they couldn't count on this information."

Later she said that if the companies had wanted to know what smokers' perceptions were, they did it the wrong way. "These results are not reliable."

Tomorrow both of this week's witnesses will complete their testimonies -- Mr. Choinière in the morning, and Ms. Durand in the afternoon.  Next week, former health minister, Marc Lalonde, will appear and David Flaherty will return.

Tuesday, 11 June 2013

Day 151: The Feds on the Hot Seat

If you just casually wandered into the elegant modern courtroom where the Montreal Tobacco trials are underway, you might be forgiven for thinking that today it was Health Canada that was on trial and not Canada's three large tobacco companies.

For the second of two long and grueling days, Denis Choinière, a senior official in Health Canada's tobacco control program, faced a barrage of questions about 50 years of government policy.

It was not only the questions that were put to this public servant that made it seem like the government was the one up on charges. His replies were highly defensive and, more often than not, seemed aimed at avoiding the answers the lawyers were seeking rather than giving the court a frank explanation of the evolution of government policy during decades of frustration with a legendarily difficult commercial sector.

Throughout the two days, a solitary government lawyer, Mr. Jean-Robert Noiseux, sat at the back of the room. Although he was prepared to intervene from behind the bar (he stood up a couple of times, prepared to express concerns), he was not in legal robes and not with any formal standing that would allow him to cross-examine or otherwise counter, clarify or contextualize Mr. Choinière's comments or the hundreds of documents tabled over the two days.

Nor were the plaintiffs able to block most of the questions put to this witness - no matter how distant they seemed from the topic at hand or the focus of his work.

Mr. Choinière was, for the most part, on his own. If ever there were a case for hardship pay for health officials, this was it!

Sauce for the Goose, but not for the Gander

This is the first real "fact witness" for the tobacco companies (Peter Gage, the nonogenerian witness who testified from Victoria last summer for JTI-Macdonald, was in a category of his own).

And so it is during Mr. Choinière's appearance that all the legal teams are getting a feel of the dynamics now that the tables have turned and it is the companies that are putting their evidence on the record.

It's a whole other ball game!

Some changes reflect the different styles of play and the need to keep some appearance of consistency. The companies, for example, objected to almost every document being put on the record and are appealing decisions that allowed it to happen. The plaintiffs hardly object to any. The companies' objections to the plaintiff's questions were consistent, numerous and often suggested answers to the witness. The plaintiffs have - so far at least - made minimal interventions during testimony.

Most other changes, to my eyes at least, are the result of Justice Riordan using his discretion to impose fewer constraints on the tobacco company lawyers than he did on the plaintiffs. Given that it is the companies and not the plaintiffs that go running to the Court of Appeal, it is not surprising that erring on the side of caution for this judge in this trial means giving the industry the benefit of any discretionary doubt.

The irony of some changes is not lost on anyone who has been sitting in the court for the last 15 months. Parliamentary reports for which JTI-lawyers claimed parliamentary privilege last November 27th were this week introduced by - you guessed it - JTI lawyers. And the same companies that (successfully) objected to questions about second-hand smoke and even roll-your own tobacco as being irrelevant to this file were today asking questions about alcohol and obesity. (The plaintiffs objections to these questions were over-ruled.)

A long leash and a wide path 

Both Doug Mitchell (who asked questions in the morning) and Simon Potter (who took over in the afternoon) took advantage of the long leash permitted them to take Mr. Choinière all over the federal government map.

He was asked about issues that took place long before his time on the file (i.e. events in the 1960s and 1970s), about conclusions in disciplines outside his area of experience or training (i.e. in social marketing and smoker behaviour), and even on policies outside his department's mandate (i.e. tax and agricultural policy).

Some snippets from the day

The Voluntary Code:  Mr. Mitchell returned to the issue of collaboration between government and the industry. He asked Mr. Choinière to agree that former Ministers of Health had spoken positively about the industry and its voluntary code.

Had not Minister Bégin (Exhibit 40167.1R) spoken to a global audience about the the "unique features" of the "voluntary agreements between industry and the federal government"? And did not Minister Epp (Exhibit 40085) praise the company for its "past practice" of vigorous adherence to the voluntary code?

Not necessarily, replied Mr. Choinière. It wasn't at all clear that Mme Bégin was referring to the CTMC marketing code (which he described as an agreement among the industry, and not with government). And he explained that the nice coda to Mr. Epp's letter didn't mean much, as it was was the sort of polite finish that was routinely put on such correspondence.

Advertising Bans: The first federal law banning tobacco advertising cleared Parliament 25 years ago this month -- a full 25 years after the first recognition by a Minister of Health that smoking caused disease.

Mr. Mitchell spent some time exploring with Mr. Choinière documents that were written in the year leading up to the policy change, encouraging him to agree that the ban was introduced before there was a scientific foundation to do so.

One of these papers was a July 1985 legal opinion provided to Health Canada (Exhibit 40179) by its legal advisers which suggested that the health department had said such a ban would be "purely symbolic" and that "There is no evidence indicating that a ban on tobacco advertising reduces smoking."

There were also two versions of a 1986 briefing note for Question Period, (Exhibit 40183 and 40184) which advised the minster that "no conclusive" and "no compelling" evidence existed that such bans resulted in reduced smoking rates.

These briefing notes were drafted by Neil Collishaw, Mr. Mitchell pointed out. Was he not someone whose commitment to reduce tobacco use was not in doubt? Did that not mean that he believed that the evidence was not solid?

Mr. Choinière did not accept the premise that the briefing note was a sincere reflection of knowledge at the time or the opinion of the author. Mr. Collishaw, he noted "was a public servant as I am and a good public servant follows instructions."  He explained that a public servant is subject to many influences when they prepare such notes.

[My colleague, Neil Collishaw, is now permitted to attend the trial. From his seat at the rear of the  plaintiff's quarters, he was on the receiving end of a few call-outs today.]

Fossilized science:  Mr. Choinière was not able to prevent Mr. Mitchell from presenting long-outdated conclusions of government staff nor from doing so as if these old reports had current meaning.

The defence has promoted the view that the notion of addiction to tobacco is disproved by the fact that smokers can quit and usually do so without medical intervention.

Mr. Mitchell suggested this view was supported by a Statistics Canada report (Exhibit 40225) which noted very few former smokers used "nicotine patches or chewing gum". 

This report was based on 1996 data, and would have reflected the fact that most of those who had quit at that time had done so before any such products were on the market. Even in 1996 the patch was still a prescription medication and other medications - like Zyban and Champix - had not yet been introduced to the market.

Another old (1977) report from Health Canada (Exhibit 40198) found that the total number of years of life lost to alcohol was greater than those lost to tobacco use.

Only in court does science stand still! No references were made to more current estimates.

Consumer protection 

For the second half of the day, Mr. Potter took the reins.

Despite his forceful repetition of questions, he was unable to steer this witness into agreeing to RBH's position that there has been a long societal consensus to permit the sale of tobacco. (As the afternoon wore on, RBH's lawyer looked increasingly vexed as the witness refused to yield to his leading questions or pushy tone.)

Mr. Potter drew attention to the recently drafted Consumer Products Safety Act. "Tobacco was recognized as a danger for health - yet there was a decision to exclude tobacco from this law!" He asked Mr. Choinière to confirm that while this law gave the Minister the power to recall harmful products, there had never been a recall or injunction against the sale of tobacco products.

No matter how many times the question was put, Mr. Choinière did not take the bait.

He patiently explained that the ignition propensity aspects of tobacco products were covered by this law as a consequence of the way those provisions came through parliament, and that other than this aspect, there was no statutory authority to use this act to recall tobacco products or put an injunction against them.

Long range and taxing questions

A document given much mileage today is a staff paper on "Smoking and Health in Canada" prepared 35 years ago by the departmental internal think tank on long range health planning. (Exhibit 40221).

Mr. Potter used this paper as a springboard to question Mr. Choinière about the government's view of several aspects of tobacco use, including its social acceptability, the health benefits of filters and lower tar cigarettes, and its regulation and taxation of these products.

Mr. Potter focused at length on tobacco taxes - which he described as the "government's take". ("One hundred percent of the retail price is government taxes!" he repeated to the confusion of those, including Justice Riordan, who calculate proportions more conventionally)

Had not health and finance officials (Exhibit 30034) once explained that these taxes were imposed to recover the "substantial costs on the society which are external to the market system." Mr. Choinière did not agree, saying that in recent decades the reason for high tobacco taxes was to reduce tobacco use.

Philippe Trudel objected - again unsuccessfully - to the questions going so far away from the case at hand. In responding to the objection, Mr. Potter revealed that he saw the high excise taxes on tobacco products as a "societal take" and signalled that later in the trial he would argue that because of these taxes "the industry has already paid punitive damages."

Funny that - I would have thought it was the smokers represented on the other side of the courtroom who paid those taxes!

Shut out by Agriculture

For a short period in the 1970s, Health Canada and Agriculture Canada worked on a "less hazardous" smoking or tobacco program. Flowing from that initiative was the development of tobacco cultivars suitable for Ontario farms.

Mr. Choinière's explanation of these events gave a different view than that in the papers filed by the companies in their defence. While there had been meetings between the two departments, he reported, he was aware of no documents that showed that Health Canada officials had "any impact" on the research agenda of the Agriculture department.

A diligent witness

Justice Riordan always thanks witnesses at the end of a stretch -- but his expressions of appreciation to Mr. Choinière were more fulsome than usual. The time and effort in preparation that were invested by this "most diligent witness" were clearly much appreciated.

On Thursday, Mr. Choinière will return for the last day. On Wednesday, Ms. Claire Durand, an expert witness for Imperial Tobacco, will testify.