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.