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.