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.