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.