Tuesday, 10 December 2013

Day 192: It was a long row to hoe

It was a mercifully short day at the Montreal tobacco trials. The testimony of former Agriculture Canada researcher Bryan Zilkey ended at noon -- with nary one question in cross-examination by the plaintiffs nor a question for clarification from the judge.

It was as she neared the end of her multi-day presentation of the government's less hazardous program that Imperial Tobacco counsel Valerie Dyer reassured the court that she was "on the exit ramp."  Perhaps she was, after all, aware of the impatience of those backed up behind her, who had idled for days while she pursued her idiosyncratically high-detail/low-content questions.

Leading on

In a now familiar pattern, on only a few occasions was Mr. Zilkey given a question that did not presuppose a "yes" answer, and even less often one that required an explanation.

Justice Riordan and Ms. Dyer have had a few exchanges on the upsides (efficiency) and downsides (less 'probative value') of her singular ability to ask leading questions.  Yesterday, the judge acknowledged that the aim of confirming the content of documents was "aided greatly by the suggestiveness of the questions." He thanked the plaintiffs for not objecting to them. Anything to make it end sooner?

There were eye-rolling moments. For example, Mr. Zilkey had written in 1973 that many smokers "are unable to quit smoking because they are habituated or addicted to smoke." (Exhibit 20966 – 1973) Ms. Dyer -- whose clients' position on addiction continues to nuance around the distinction between a medical definition of addiction and the popular understanding of what it means -- asked Mr. Zilkey: "Are you trained in psychiatry or psychology in order to give an expert opinion? Are you using i[the term addiction] in the layman sense?" Lo and behold! Mr. Zilkey agreed that he was using addiction in the popular culture sense that have embedded in their defence.

A public service? 

Despite the tedium of the experience, there is much of interest in the material that Ms. Dyer put on the public record over the past few weeks.

No-one else has compiled such a detailed dossier on the federal government's ham-fisted early efforts at harm reduction. No one else has assembled the raw material that would allow an analysis of whether this was a massive policy failure or just a sad sign of the times.

It seems unlikely that there will be a judge with the mandate to investigate what went wrong with tobacco regulation at Health Canada. No equivalent to the Krever inquiry on tainted blood, for example. But thanks to Imperial Tobacco's efforts, we now have a few thousand documents on the record that can serve less official evaluations.

Those with the stomach for disappointment can read an illustrative example of the material shown today - a memo explaining the government's thinking that was written in 1975 by Harold Colburn, the man in charge of the file at Health and Welfare Canada. Exhibit 40347.59

Other documents discussed today were those in which the mandate of the government's approach was developed and refined, (i.e. Exhibit 20800.2), those that recorded meetings held between Agriculture Canada and Health and Welfare Canada (i.e. Exhibit 40347.60), those which elaborated the program protocols (i.e. Exhibit 40347.71) and those which detailed the discussions of the scientists involved. (i.e. Exhibit 40348.23).

The federal government had a grand plan! "A system which extends from tobacco seed to smoking-related disease" that was developed to face "the reality of some six million Canadians continuing to smoke cigarettes regularly, i.e. every day. You may call it "Smokers' Rights" if you will, as compared to the current "Non-Smokers' Rights movement." (Exhibit 40347.59)

But today Mr. Zilkey barely mentioned smokers or disease. Instead, his focus remained on farmers. Tellingly, he cited as an accomplishment of the first round of research he conducted to be the fact that artificial tobacco had been found to be no less harmful than real tobacco. No reason to shift away from good old Canadian-grown tobacco. "The farmers particularly would have been interested in that."

No regrets

Nor did Mr. Zilkey express any doubts about his decades of work on tobacco for the federal government. Those quibbles he did express were reserved for the decisions of Health Canada to end its subsidy for Agriculture Canada research. This decision he blames for the plug being pulled on the bio-assay tests that he wanted to run on various tobacco components ($300,000 per test!). Perhaps Agriculture Canada had no money of its own.

So, without the Health Ministry's involvement, Agriculture Canada continued on its own to discover new varieties of tobacco that produced higher levels of nicotine.

"We went on with our concept of a reduced tar to nicotine ratio tobacco ... eventually that research developed the varieties that went to the farming community that actually produced higher nicotine tobacco. That material was picked up by the manufacturers and I am sure by using their technology and blending technologies, they were capable of producing in their own way for the market a less hazardous cigarette." 

And on other fronts

We learned yesterday and today that Dr. Burns will be providing an additional expert report to respond to the critiques of Mr. Dixon and others. The defence teams will look at this report (due at the end of the month) before deciding whether they want to exercise their right of rebuttal.

Tomorrow, we will hear memories from the other side. Mr. Bert Liston, the former Assistant Deputy Minister for Health Canada's Health Protection Branch will testify.