Wednesday, 4 December 2013

Day 189: "A mandate to produce tobacco of the quality required by the industry"

For the third day in a row, the Montreal Tobacco Trials stayed focused on the close collaboration between Agriculture Canada and tobacco farmers and manufacturers. But with a different witness - and a different examining lawyer -- there was a world of difference in the court room experience of hearing the story one more time.

Peter Wade Johnson became the 62nd witness at this trial when he was sworn in at 9:30 this morning - and the third federal government employee to be asked to the trial. (The former Minister of Health, Marc Lalonde, would be a fourth "government" witness.)

Mr. Johnson has much in common with the witness from earlier this week, Mr. Charles Francis Marks. Both men studied the same subjects at the same universities -  both earning a Masters in Nematology from what became the University of Guelph, and a PhD in the same topic from the University of California at Riverside.

At 71, Mr. Johnson is four years younger than Mr. Marks, and his career seemed to have followed with the same time lag. He replaced Mr. Marks as director of the Delhi Research Station in 1981, five years after Mr. Marks had taken the same position.  He retired from the government in 2004 - four years after Mr. Marks had done so.

The content of their testimony - and the documents they were asked to comment on - were also virtually identical. They both spoke of efforts by Agriculture Canada to develop new varieties of tobacco plants that gave farmers more yield per acre and smokers more nicotine per tar - and of their success in doing so. They spoke of the close relationship between Agriculture Canada and its tobacco producer/manufacturer stakeholders. They spoke with pride in all these accomplishments. They were both shown a ream of work plans, plant registration data, operational reports.

But the style differences!

RBH Counsel
Jean-Francois Lehoux
Whereas Mr. Marks rarely broke away a  "yes" or "no" in his answers,  Mr. Johnson's replies flowed in concise and content-rich full paragraphs.

And whereas Valerie Dyer's closed-ended questions provoked comment for their leading nature, Mr. Jean-Francois Lehoux made obvious his efforts to not put words in his witness' mouth.

The last time Mr. Lehoux questioned a witness in this trial was the comi-tragic testimony of historian Jacques Lacoursière. Today was a much better process for all involved! The discussion between lawyer and witness was pleasant to follow, and with no interruptions or objections, the two men moved quickly and cordially through a series of short explanations about agronomical issues in the 1980s and early 1990s.

(Only a small number of the exhibits entered today were referred to. About 150 new government records were made public today - from Exhibit 30056 to 30206).

Mr. Johnston described the mandate of his directorate as one which focused on the needs of those who supply tobacco products. "Our mandate was to produce tobacco of the quality required by the industry – .... to work with the growers to help them develop the qualities [in their tobacco] to meet market requirements for the domestic and export market."

A Health Consensus 

The work was guided by a "consensus among everyone concerned - the companies, Health and Welfare Canada" that "if we could lower the tar nicotine ratios we could help the companies product a cigarette that would maintain the nicotine. It would not be a safe cigarette, but would be a less hazardous cigarette." 

A criteria for success was always "consumer acceptance" of any new tobacco varieties. "If it was not acceptable to the public, we were wasting our time. It would not sell. The growers wouldn’t make any money." (Exhibit 30076)

It was the tobacco companies who decided if a tobacco variety would be acceptable to consumers. They received samples of proposed varieties from Agriculture Canada, and then tested them on their 'smokers' panels'. Annual meetings were held with the companies to discuss the results of such tests and plans for the future. (Exhibit 40348.155)

A Research Consensus 

The collaborations between government, industry and farmers were formalized through committees. This was particularly true when the partnership involved the growers and manufacturers subsidizing the research operations of the department. , and the companies and growers co-funded research activities by the department. He spoke of two funding mechanisms that had been used during his time at the Delhi Research Station: -- the Delhi Engineering Research Group (DERG), and ON TRAC. On both occasions, the financing was split 65%/35% between company and farmers. (Exhibits 40348.128, 40348.126, 30108)

The choice of funded research projects was made through discussions with the industry - "whether the growers or CTMC members". Once the researchers had identified "what their problems were", the scientists "would then develop proposals to respond to this." 

Mr. Johnson testified that the companies did not exercise "any direct control in terms of yes or no" on the work of the scientists. "The only place where they might have some stay  was the evaluation trials. if this resulted in tobacco that they felt was unacceptable they might be able to say no at that point. But they did not say yes or no on research."

Nor, he said, was there any influence on the conclusions that were reached or whether/how they were published in scientific journals.

What to do when sales drop.

Mr. Johnson said that the department wanted to support the export of Canadian-grown tobacco to other countries. He or his colleagues would on occasion travel on trade missions to China and other countries to help this happen. (Exhibit 30161)

It was the drop in smoking rates that prompted increased interest in growing exports. "At that time we assumed that there had been a reduction in smoking and therefore the companies did not require as much tobacco."  The department also began to put resources into finding substitute crops for tobacco, such as peanuts.

Not employees, just contractors

Ms. Valerie Dyer picked up the defendants' questions of Mr. Johnson. We spent many several long minutes back in her idiosyncratic method of identifying documents without saying anything about them before she asked Mr. Johnson to state whether any Agriculture Canada employees had been contracted to Imperial Tobacco. "No," he said - it was only a funding arrangement.

ITL contract issued to Agriculture Canada
1986 - Exhibit 20244.2
(These contractual arrangements have been the subject of testimony to at least three witnesses so far - Mr. Duplessis, Mr. Marks and Mr. Johnson. On that basis alone, the difference between contracted to and  employed by would appear to be an important distinction!)

That's no lady - that's my lawyer!

When plaintiff lawyer, Bruce Johnston, began his (brief) cross examination, he did not immediately ask about the "excellent" relationship between government and the defendant companies. Instead he referred to the apparent closeness between the witness and the companies' legal team.

He asked Mr. Johnson to confirm that he had reviewed the documents shown to him by Mr. Lehoux before his testimony today.

He asked Mr. Johnson to identify the young-ish woman who had accompanied him to the court room. "Deborah? - She is an assistant for Mr. Lehoux," Mr. Johnston said, turning back to look at the Ms. Deborah Templer of Gowlings.

How curious! No federal government lawyer, but counsel to Rothmans Benson and Hedges present to support Mr. Johnson? A very close relationship indeed.

Nicotine both satisfies and addicts users

As he had yesterday with Mr. Marks, Mr. Bruce Johnston used the opportunity to have federal government tobacco specialists confirm that the industry had understood nicotine to be addictive several decades ago. He asked Mr. Johnson to confirm his statement to the media in 1986 that "the common belief is that the nicotine in tobacco smoke is what both satisfies and addicts users" and that a bonus of the plant breeding system was "to try to boost he nicotine content without increasing the tar." (Exhibit 30101)

Mr. Wade Johnson confirmed that this was his understanding at the time and had been commonly understood in the industry as well. He also confirmed that if a tobacco variety had not been acceptable to a smokers panel, that Agriculture Canada would not have registered it. (Exhibit 1647).

Stick it to the taxpayer? 

Revised notices to potential
 class members were published
on October 5
At the end of this short day (the day was adjourned at noon), Justice Riordan was asked to reconsider his direction that the tobacco companies were on the hook for paying for the insertion of notices in major Quebec newspapers. The cost of the advertisements was said to be $35,000.

Craig Lockwood asked the judge to reconsider and to ask the plaintiffs to pay. He said this request was being made in light of new information that the cost of the first notices had been paid for by the government-funded program to support class actions, the Fonds d'aide aux recours collectifs.

In Mr. Lockwood's view, this meant that the companies would be on the hook for both payments if they were to lose the case, as the Fonds d'aide would be eligible for reimbursement from any judgement against the companies.

Justice Riordan leaned back in his chair, crossed his arms and smiled.

He invited Mr. Lockwood to consider what the Fonds might do if they found out about any such reversal of decision -- and to consider the likelihood that the Fonds management would know what was going on in the courtroom today.

He disagreed with Mr. Lockwood's view of how these trial costs were managed. "The notices should form part of the costs of the case," the judge reminded him. The companies would be able to claim these expenses if damages were awarded against the plaintiffs. "I am not going to change my ruling."

Tomorrow there will be no witnesses. The plaintiffs will present a motion to allow the expert testimony of Mr. David Burns to be introduced in this trial.