Monday, 16 September 2013

Day 167: A detour through farm country

Since last Thursday afternoon, the Montreal tobacco trial has seemingly left the main road of industrial activity, and has followed a side-trip through the agricultural policies of the Government of Canada. Navigating this detour has been Imperial Tobacco's counsel, Ms. Suzanne Côté, and narrating it is her witness, ITL's former agronomist and research director, Gaetan Duplessis.

Mr. Duplessis is one of the most personable scientific witnesses to have testified at this trial. (Okay, the competition is admittedly not that tough). He retired three years ago with almost 30 years service at Imperial Tobacco, but this is no aging pensioner. Mr. Duplessis looks, speaks and moves like a man much younger than his 60 years. He has the air of a regular Montrealer, albeit of the born-French but studied-and-worked in English variety. (Like many Montrealers, he's a snappy dresser!)

Back to his roots

It was with his newly-minted Masters of Science in Agriculture that Mr. Duplessis joined Imperial Tobacco as a research assistant in 1981. Ironically, he studied at McGill's Macdonald Campus, which was named after the founder of Imperial's largest Canadian competitor at the time.

Mr. Duplessis not only rose through the ranks of agriculture researchers, he branched over into other aspects of Research and Development. In 2005 he was given the senior R&D position, which he held until his retirement in 2010.

Whereas historian Robert John Perrins had given a compressed history of government policies, Mr. Duplessis' tour gave us a very an almost microscopic level view of the government's plant breeding initiatives.

Where are we going, exactly?

Justice Riordan offered some modest resistance to the apparent change in direction. Several times he asked Ms. Côté to justify the new routing. "Why is this helpful?" "What am I supposed to get from this?" Her answers -- identifying each questioned document as a way to defend against an allegation or a piece of incriminating evidence -- seemed to satisfy.  It was soon clear that we were all along for the Côté-Duplessis tour.

But there were so many stops! So many points of interest! I think I saw more than 50 or more exhibits fly by. (Today's exhibits ran from 20231 to 20255). Who can be blamed if they all started to blur? Even Justice Riordan complained the cumulative effect was a "mishmash".

What were they thinking!??

Reports on Agriculture Canada's
tobacco breeding program were
"not for publication"
The most interesting part of the tour was the territory exposed when Mr. Duplessis spoke about government documents that have long been hidden from public view.

Dozens of exhibits tabled today suggest that Agriculture Canada made many decisions that were of questionable service to the Canadian public - and that it continued to do so even in recent years. For example:

The federal government financed the development of the tobacco blends that are smoked in Canada.  For the past 30 years, virtually all the tobacco plants grown in Canada are varieties developed by Agriculture Canada. Delgold - Delfield - Delliot - Candel - AC Cheng - AC Gayed. (Exhibit 20235 and others).

The government intended for nicotine levels in Canadian tobacco to increase. Agriculture Canada tried - and succeeded - to successively increase the amount of nicotine in these varieties. It changed its benchmark breed for new strains so that all future registered varieties would produce higher nicotine tobacco. (Mr. Duplessis testified that the tobacco companies resisted the increases, and pushed for nicotine levels to be reduced.)

The government accepted tobacco industry money to support its research. When Treasury Board would not finance Agriculture Canada's tobacco research, the companies and the growers chipped in to make sure the work was done. They established ON-TRAC (Ontario Tobacco Research Advisory Committee) and its successor the Canadian Tobacco Research Foundation.

The government was a contractor to Imperial Tobacco. Agriculture Canada signed research agreements with Imperial Tobacco in which the company provided project funding and the government provided scientific support. The research results, and intellectual property acquired, remained with Imperial Tobacco.

The government researched GMO tobacco. Biotechnology and "exotic germplasm" were the subjects of research agreements between Imperial Tobacco and Agriculture Canada. (Interestingly, BAT disavows the use of GMO tobacco).

The government manipulated nicotine levels in Canadian tobacco, even after doing so was an identified subject of public concern.  The 1994 scandal about Y1 tobacco was the subject of significant media interest and a catalyst for Health Canada to investigate whether nicotine spiking might be taking place in Canada.  Yet Agriculture Canada raised the benchmark level for nicotine in tobacco after these events.

[The report commissioned by Health Canada on nicotine levels in Canadian cigarettes was released in 1995, and is now evidence in this trial (Exhibit 40347.99). When the report was released, Health Canada said it exonerated the industry from the charge of nicotine manipulation. Given the clear suggestions that nicotine levels had been altered in the period, this public statement was denounced by those in the public health community who thought teh research results clearly suggested something was afoot. Even the report's author, Bill Rickert, would not agree with Health Canada's conclusions that the industry was not engaged in controlling nicotine levels. Today's evidence gives new insight into why the federal government might have been reluctant to throw stones!]

Mr. Duplessis painted a rosy picture of his relationship with Health Canada. He spoke of how "very impressed" officials had been following a visit to the ITL laboratories in the mid 1980s (Exhibit 20248.1 to 20248.3). He said that the details of Project Day and the industry's plan to reduce TSNA's through kiln conversation were discussed at length with Health Canada officials, who characterized these developments as "very positive."

Back on track

Returning from the tour of the federal government's tobacco farming policy, Ms. Côté invited Mr. Duplessis to respond to many of the allegations against his former employer. The witness gave a very sincere sounding "ABSOLUTELY not!" to a series of direct questions which asked him to corroborate the plaintiff's case.

Mr. Duplessis assured Justice Riordan that additives were not used in reconstituted cigarette tobacco, although there were some included in for fine-cut products.

He told the judge that, whatever the intention of BAT lawyers (Exhibit 82B), there were no restrictions on the sharing of scientific research, and that lawyers kept their distance.

If he expressed any concerns, they regarded the distancing his team felt from medical researchers, who were constrained by new professional guidelines or principles that prohibited collaboration with the industry.

Back by popular demand

So detailed were Mr. Duplessis' explanations that his testimony ran a half day longer than originally anticipated. Ms. Côté put her last question very close to the end of the day, leaving Mr. Lespérance only a few minutes to begin his cross-examination. As a result, Mr. Duplessis will return at a later - yet unscheduled - date.

A judicial squeeze on the calendar.

Justice Riordan appears to be stepping up his pressure to speed things up.

Over the past few days there have been more than a few signals from the bench that this judge has heard enough on some subjects. ("If someone starts explaining compensation to me one more time I am going to hit my head on the desk." "Not taking too much time, but it's a question of taking time unnecessarily." "I have had a lot of testimony on 'recon': I know the issues." ... and my favourite - "I understand what irritation is!" )

This morning he put it clearly to Imperial Tobacco's counsel that their next witness - Dr. Michael Dixon - should not be expected to testify at length. He forced the hand of that team to provide documents that would allow for negotiations on admissions.

And he repeated that the companies needed a "plan B" to provide "back-up" witnesses for those occasions when the schedule runs under time.  "If we run out of witnesses, you might have to start pleading your case," he teased/warned them.

From May 2013 to the end of September, there will have been 30 sitting days for the trial - but 13 fewer than originally scheduled for this period. (2 lost in May, 5 in June, 2 in August and 4 in September). Not surprising then that holes in the schedule are beginning to draw fire.

Tomorrow another expert witness will testify for Imperial Tobacco. Mr. Michael Dixon is employed by BAT and will speak about compensation.