Monday, 10 June 2013

Day 150: The federal story begins to be told

There are only two weeks of hearings left at the Montreal tobacco trials before a long summer break. For each of these weeks, the tobacco companies have scheduled a witness through whom they will introduce a new story line to the trial -- the decades' long saga of Health Canada's management of the tobacco file.

The first such witness was sworn in shortly after 9:30 this morning.  His name is Denis Choinière, and his position at Health Canada is - take a deep breath because it is a long title - Director of the Tobacco Products Regulatory Office of the Controlled Substances and Tobacco Directorate of the Healthy Environments and Consumer Safety Branch.

The affable Mr. Choinière is one of the world's most experienced and well-respected tobacco regulators. In addition to his work in Ottawa, he is a member of the management committee (the bureau) of the global tobacco treaty, the Framework Convention on Tobacco Control. He has been a central figure in the development of some of Canada's pioneering tobacco regulations -- such as the first picture warnings, the first requirements for detailed reporting of toxic constituents, the first change to the ISO measurement standard, and the first national requirements for cigarettes to be less likely to cause fires.

Despite this record - and despite being one of the longest-serving federal workers on tobacco control - Mr. Choinière did not start working on tobacco issues until after these lawsuits were launched in 1998. That is to say, all of the events which are within the time frame of this trial predate his direct personal experience as a health regulator for tobacco.

The designated witness

Politicians may be elected because they know to say the right things, but public servants are more often selected because they know not to say the wrong things. 

I think it must have been Denis Choinière's almost legendary ability to provide a diplomatic non-answer to a direct question that led to him being assigned the unenviable task of acting as the designated witness for Health Canada during the many years it was caught up in this court case. (The Quebec Court of Appeal released it last November 14th).

In that role, if I heard correctly today, he spent some 20 days being "deposed" (questioned) by tobacco industry lawyers and many more weeks or months preparing for the case. He read through many of the hundreds of thousands of government documents gathered and provided to the industry's' legal teams.

His immersion in these historic records may have made him a marked man for this trial, even after Health Canada was no longer officially a party. After having his study of Health Canada's tobacco history exposed to the companies' lawyers, this was a man who could not under oath say that he "did not know" what happened before he arrived at the department.

And, on the same day that the companies were at the Court of Appeal challenging the use of "Article 2870" to convert documents into evidence (see below), they may not have wanted to make it too obvious that the are in the same pickle as the plaintiffs -- too many documents with too few living witnesses.

Mr. Choinière's willingness to talk about documents and the plaintiff's strategic decision to not raise objections allowed them - at least today - to gloss over this point. At the beginning of the day, however, Mr. Mitchell gave notice that the companies were working on their own approach for this problem, which they would share at the end of the summer.

The federal role

The Appeal Court discharge notwithstanding, the federal government has retained a presence in this trial and remains a very visible part of the industry's defence.

As Justice Riordan explained it in his ruling last month, "Although the Companies' action in warranty has now been dismissed, the Court recognizes that the activities of Health and Agriculture Canada in the areas, inter alia, of advertising restrictions, notices to the public, light and mild cigarettes and new tobacco strains have pertinence to at least the question of punitive damages."

Only a few weeks ago, the companies stressed the importance they put on the federal role by scheduling 70 days of testimony from current and former federal employees. We don't yet know how many will actually testify, however, as Justice Riordan has now given the companies until June 19th to provide the revised witness list for their now-limited trial period of 175 days.

The industry's task of shifting the focus to what the government did or did not do will be made easier by the fact that they were able to keep all of the government documents provided to them, and to use them in this case even though the government is no longer party to it.

This morning, a drop from that bucket of administrative and policy history was put on the trial record. In the blink of an eye, 160 of these records were entered as Exhibits 40066 to 40224. (The documents will likely be available on the plaintiff's web-site in the coming weeks)

A veterans' team

The industry's task is also made easier by the fact that their team includes lawyers who have spent years in court fighting Health Canada on the tobacco file and who have acquired a detailed knowledge of Health Canada's documentary records.

Two of these experienced legal hands are on the front bench this week -- JTI-Macdonald counsel Mr. Doug Mitchell and Ms. Catherine McKenzie.

Mr. Mitchell asked all the questions today. Although the questions were razor sharp, there was no sign of the 'tough-guy' interrogator that has occasionally surfaced with other witnesses.

The long view.

Mr. Mitchell chose to take a mostly chronological, if not historical, approach to the documents he showed Mr. Choinière. For the first half of the day he worked through the development of a programmatic response by the government to tobacco use:

*  The 1908 passage of the Tobacco Restraint Act, but its eventual decline in enforcement "to the point where it is now generally recognized as unenforced.” (Exhibit 40221)

1960s education
* The surprisingly frank 1946 publication by the department of a booklet on "Smoking"  which warned that smoke "reaches the most vulnerable part of the human body, causing impairment of vital organs" and observing that despite knowledge of the health risks "some of the most informed as to the potentialities are its most willing addicts". (Exhibit 40104)

* Events in the 1950s, such as the federally funded "Veterans" study that helped establish the link between lung cancer and smoking and was cited in the 1964 Surgeon General's report.

* The build-up to the first statement by a Minister of Health about tobacco and health 50 years ago this month, the national gathering that took place later that year, and the launch of educational programs. (Exhibits 40116, 40119, 40123)

* The report of the Isabelle Committee in the late 1960s, and the actualization of many of its recommendations through voluntary agreements of the industry.

* An apparent change in focus in the 1980s, away from education and towards persuasion. Break-free! Young people were urged by pop-singer Luba to join a new generation of non-smokers.

1980s persuasion
Do the records tell the whole story?

Although Mr. Choinière had no personal experience with any of these events, he dutifully responded to questions based on the knowledge he had gleaned during his review of the governments record. His willingness to comment on events was in sharp contrast to the constrained testimony of the many industry witnesses who preceded him on the stand.

For the most part, Mr. Choinière did not challenge the history that was presented to the trial through the government records. But there were several occasions when he hesitated to confirm it.

In one instance, Mr. Mitchell showed him a departmental publication claiming that 90% of Canadians were aware of reports of health issues with smoking (Exhibit 40049) as well as a press release in which the Minister of Health was quoted saying "success has been achieved" in informing "all but a minority" of people about the risks of smoking.

Mr. Choinière declined Mr. Mitchell's repeated urging to say that success had been achieved - he seemed to put more weight behind an evaluation process than a minister's press release.

On another occasion he implied a view that the documentary record might not tell the whole story.
Mr. Mitchell asked whether he thought that Canada was a "world leader" in tobacco control. Mr. Choinière, whose work on the FCTC allows him to see who is leading and who is coasting, hesitated to answer, and scratched his head as he observed "You are asking me for my opinion."  He redirected his thoughts and replied: "Health Canada says it is a world leader. If I base myself on [government] documents, yes."

Federal perspectives are not homogenous, Mr. Choinière suggested. He spoke of the diversity of views that exist among public servants, and of frequent debates. The documents might speak for themselves, but they may not tell the whole story.

Reasons or excuses ?

Perhaps the climax of the day's testimony was mid afternoon, when Doug Mitchell asked Mr. Choinière to comment on an e-mail he had written in 1999 to his then-supervisor. His unit was working on the first round of graphic health warnings, and he was resisting the suggestion to add a warning regarding "light" cigarettes.

In his memo (Exhibit 40224) he cast doubt on the idea that light cigarettes were no less harmful. "Do we know for sure that light cigarettes are not better? One monograph from the US reports that for some smokers, there could be a beneficial effect? On the other hand, another report suggests that they may be the cause for a switch in lung cancers to adenocarcinoma. What is our position? ... I think it would be premature to move on this at this time."

If Mr. Mitchell was looking for confirmation that in 1999 Health Canada was still reserving judgement on light cigarettes, Mr. Choinière refused to give it to him. He explained today that his real concern was the delay the addition of a new warning would cause to the others already in the works. "In 1999 we were at the end of putting our regulations on warnings," he explained "I think I did not want to bring in a new warning – I did not want it to slow us down.

Busting out at the seams

Spacious as it is, Room 1709 of the Palais de Justice can't contain all of the action in this trial. Today there was trial news from other venues.

Beginning: This weekend the plaintiffs have circulated a motion whose object was not revealed, but which seems to involve JTI-Macdonald in ways that makes their lawyers stand quickly to their feet and say "confidential!" "confidential!" Justice Riordan has asked the issue to be taken up with the Chief Justice. A tantalizing mystery!

Middle: This morning, the Court of Appeal heard arguments on whether or not to overturn Justice Riordan's first decisions using the provisions of Article 2870 to permit industry documents to become exhibits when appropriate witnesses are dead or unavailable. It reserved its decisions - but when the lawyers returned from the Court of Appeal to report to their colleagues, there were more smiles on the plaintiff's benches than on the industry side.

End: Last week, the Supreme Court of Canada denied leave to appeal of Justice Riordan's decision to allow David Flaherty's early consultations for the companies to be permitted. Mr. Flaherty is now cleared to return to answer questions that have been postponed for more than a year.

Tomorrow, Denis Choinière's testimony will continue. On Wednesday, Ms. Claire Durand (expert witness) will testify for one day. Mr. Choinière is expected to complete his testimony on Thursday.

Next week's witness will be former health minister, Marc Lalonde.