Thursday, 12 December 2013

Day 194: The disturbing revelations by - and about - Albert Liston

As far as I know, this week was one of the very few times in Canadian history that a former senior bureaucrat has been held accountable in court about the management of the tobacco file.

Nevermind that the federal government has been excused from this case. Nevermind that Albert Liston, the former Assistant Deputy Minister at Health Canada, was a witness and not a defendant. Nevermind that Justice Riordan has a mandate to pronounce on whether the tobacco companies acted in ways that harmed smokers' health, but has no responsibility to say whether the government did too.

Despite all of the above, the spotlight was on the thoughts and actions of one man who once sat at the top of the mammoth (2000 or more) scientific branch of Health Canada. It was Mr. Liston that the tobacco companies had chosen as their shield, and it was Mr. Liston who had testified yesterday in support of the company's positions on addiction and warnings. And so it was Mr. Liston who was the object of a gruelling day's cross-examination by the plaintiffs in the Montreal tobacco trials.

Gruelling, yes, but not aggressive. Plaintiff lawyer Bruce Johnston kept his elbows in, exercising a restraint in the tone, scope and phrasing of his questions that earned him the support of Justice Riordan and - after a bit of scolding from the judge -- mostly kept the defendant lawyers from finding a basis to object and interrupt the flow of the exchange.

The morning was one of the most intense of this trial. Colleagues from the health community sitting behind me were leaning forward in their chairs, and barely a muscle twitched in the more than a dozen lawyers seated ahead of the bar.

The last man standing

There were some unpleasant truths in Mr. Liston's testimony, but there was no chance of reconciliation with the rest of the government's record.

Of the two-dozen former employees or contractors once fingered as potential witnesses, only Mr. Liston remained on the list. (Two others - former Minister Marc Lalonde and current director of regulation Denis Choinière - testified in June). A comparative list is shown below.

There was no government lawyer in the courtroom. No one available to defend the public record against the revelations that the man in charge of tobacco regulation never believed that cigarettes caused disease, never accepted that they were addictive in the medical sense, and never believed that there were measurable amounts of second hand smoke in Canadian homes. Not even someone to take notes.

An affair to forget

Sprinkled throughout the day were questions to Mr. Liston about his relationship with the tobacco companies since his retirement from Health Canada in 1992. He worked with the companies from at least 1994 and closed his consultancy in around 2005. Since then, he said, he had not billed the companies for any work. He was not being reimbursed for his appearance at this trial.

Mr. Liston had been subpoenaed with a request to bring with him records of his consulting relationship with the tobacco companies, but the only documents he could locate were an excel table of billings for the years 1995 to 2000. Any other material had been "purged" - "I had no use and they were intrusive in my home."  The loss of any electronic records he blamed on migration from one operating system to another as his computers changed.

The records of billings that remained - Exhibit 1650 - showed that Mr. Liston charged $200 an hour, and that the work he billed for included database searches at quasi-governmental agency, the Canadian Centre on Substance Abuse. It is not clear whether this was during the same period that he was a board member of the CCSA, or why tobacco industry consultants were allowed to be part of its governance.

It was not only the paper records of his post-retirement work that had been purged. So, too, it would appear is his memory of some significant work he did for them in that period.  He shook his head at Bruce Johnston's questions about the affidavits he signed in 2004 to support Imperial Tobacco's defence in the Knight and Sparkes cases.  "I am afraid I don’t believe so. I don’t recall."  

Which is worse? A witness whose memory is so unreliable that he cannot recall the complex task of preparing a legal statement, or the fact that he may have been willing to sign one prepared by lawyers?

Let the record show

Mr. Johnston had with him a stack of documents that he used to contrast Mr. Liston's testimony this week and his consultancy reports to the industry with material he had once put his name to when working with Health Canada.

One of the first he showed Mr. Liston was his advice given to the CTMC that roundly criticized the facts cited in anti-smoking ads prepared by Health Canada in the fall of 1994. (Exhibit 1651).

(You'd have to have a long memory to recall the ads in question - they were the first and final wave of anti-smoking campaigns financed by the Tobacco Demand Reduction Strategy to offset the effects of the 1994 tax-roll back. The first of these ads showed a man's hand squeezing a box of cigarettes while the gooey tar dripped into a glass beneath. The second showed smoke in a home and warned of the ear infections, bronchitis and increased risk of SIDS that could result.)

In this memo, Mr. Liston had provided the companies with talking points to counter these ads: - the chemicals in tar were the same as those found in vegetables or nuts.  "Cigarette smoke is not lethal." Health Canada's estimates of mortality is "ill founded and reflect bias but not fact." Second hand smoke levels are so low in homes that it is difficult if not impossible to measure.

He bristled a bit at the suggestion that his criticisms of Health Canada's ads reflected a change in his desire to ensure "health protection."  If his advice to the companies was different than the advice he had once given the Minister of Health it was because his knowledge had advanced. "At the time, whatever I forwarded was because it thought it was accurate. I found out later that it was less than totally accurate."

The plaintiff lawyers looked at each other in disbelief as Mr. Liston revealed that - 50 years after the government officially acknowledged causation - their former ADM of Health did not.

"I did not believe it. Epidemiology gives you associations and they don’t speak to cause, they only speak to frequencies of occurrence. The classic example is to say most people who die have grey hair, but grey hair does not cause death. An association is not causal."

Duty to warn? Right to exaggerate!

His answers to questions about the obligations on manufacturers to provide factual information to their clients was equally chilling -- especially coming from a man once responsible for overseeing the promotion of products Canadians put on or in their bodies.

"Generally I would say there are many cases where exaggeration is used as a way of promoting use and sale. The whole cosmetic industry is predicated on that - some degree of latitude is granted in the form of exaggeration."  

Mr. Liston seemed to feel that the absence of any reference to risks in cigarette advertising did not mean that there was any misleading about the existence of risk. "I am not sure that they spoke to the risk of smoking in any of their ads."

The purpose of cigarette advertising, he said, was "to try to get market share." He acknowledged that advertising might also encourage use, even for tobacco ads, but this was not a reason to ban it.

Bruce Johnston: "Does tobacco advertising encourage people to participate in an unsafe or dangerous practice?"
Albert Liston: "I have difficulty with that because you can smoke and it doesn’t kill you. Is the practice dangerous? Statistically speaking, over a number of years and thousands of cases it does impact on the number of years of life lost. Is it a dangerous practice? yes, but the manner I which you are framing it leaves me with some concern. 

Bruce Johnston: "Because it doesn’t kill everyone?"
Albert Liston: "Amen!"

Not in line with other scientists -

A recurring theme in Mr. Liston's testimony was the extent to which he saw his own scientific conclusions as being above those of his colleagues - whether those were colleagues in other branches of Health Canada or in health authorities in other areas.

* He refused to back down from his assertion that the switch to the term "addiction" was one supported by the broad scientific community, even after being shown the many-layered peer review process behind the 1988 Surgeon General Report, or the conclusion of the industry's own expert historian that by the late 1980s the term addiction had been accepted by nationally-recognized expert committees in Canada and the United States.

* He pooh-poohed the 1986 Statement of the World Health Assembly that smokers should be warned of the addictive nature of smoking, even though he had been part of the chain within Health Canada that had recommended support for this position. (Exhibit 40346.371)

* He could not recall the existence of the Dominion Council of Health (an important advisory body to the Minister of Health that was in place for the first decade of Mr. Liston's career at Health Canada), nor its 1962 acknowledgement of the addictiveness of smoking. (Exhibit 40346.381)

- and not in line with his own department. 

Mr. Liston had testified yesterday that it was not because of any transgressions by the companies against their advertising code that the government moved towards a ban on advertising. (He had left the implication that it was a purely political decision of Minister Epp and had resulted from pressure by advocacy groups).

Mr. Johnston showed a series of documents reflecting high level concerns of the branch about marketing , and a desire to move towards stronger legislative measures in response. Even the CTMC had noted that Mr. Liston had expressed concerns about violations in their meeting with him in April 1986 (Exhibit 274)


Exhibit 1655
Widespread breaches of the code had come to public attention in 1986 after the Non-Smokers' Rights Association assembled a report, and publicized the report in an advertisement in Macleans. (Exhibit 1655)

This focused the attention of Health Canada - both in Mr. Liston's Health Protection Branch, and also in the Policy and Planning and other divisions.

The Deputy Minister, Mr. David Kirkwood, recommended a series of actions to the Minister, Jake Epp - reassuring the NSRA that a ban on advertising is being contemplated,  acknowleding in the media that violations have taken place, hinting that advertising would be regulated -- and doing all of this quickly to "achieve maximum effect in increasing public support for additional initiatives."(Exhibit 1653).

Almost 30 years on, Mr. Liston remained sniffy about his colleagues who had prepared these recommendations. Their jobs were focused on the "social impact" he said in a derisive tone. In those departments "There was a greater probability that there could have been some looser use of terminology."

His slagging of the other parts of the department drew a stunned question from the judge. Was Mr. Liston suggesting that the Minister of Health would receive advice from senior officials to go public with statements that were not based on facts?  Mr. Liston retreated behind the lack of objective information, but did not change his assessment of his colleagues' judgement. "The code is not very specific. One person could subjectively say there is a violation."

Mr. Johnston showed that other contemporaries had expressed concerns about violations of the code - including the previous Minister of Health, Monique Bégin. (Exhibit 1656).

He showed that, contrary to Mr. Liston's view, the CTMC voluntary code had been modified without consultation with Health Canada, and that this had been identified as problematic. (Exhibit 1656.1, 1657)
One change that happened during this period was a change by the Canadian Advertising Foundation to specifically permit the advertising of dangerous products, as long as they were legal for sale. (Exhibit 1658, 1658.1, 1659).

Taking the piss with  Imperial Tobacco's defence team

One of the funniest moments of the trial was too much of an injoke to be appreciated by Mr. Liston, but was not lost on those in the audience who had a good laugh as sparks began to fly between the opposing sides of the courtroom.

It turns out that a one of the many Canadians who wrote asking for stronger laws against tobacco advertising was a Nancy Roberts of 14 Chatsworth Drive in Toronto.

In November 1985 she wrote the Minister of Health, then Jake Epp:  "As someone who at one time was a heavy smoker, I have first hand knowledge of the terrible effects of cigarettes and the difficulties in quitting. I find it appalling that, in as much as cigarettes are unquestionably harmful, the RJ Macdonald company, with the help of J. Walter Thompson, have now targeted teenagers as a desirable market group." (Exhibit 1649.1 )

The reply - prepared by Mr. Liston's staff and transmitted to the Minister's office through his office -- admitted that the ad was a "contravention of rule #7 of the voluntary cigarette advertising code." (Exhibit 1649)

Nancy Roberts
the Lawyer
There was a flurry of objections to this document being filed! Mr. Johnston's tongue was not very firmly in his cheek when he suggested that if Mr. Liston was not considered the appropriate witness to file the document, there might be someone else available.

Left unsaid - but well understood to the rest of us - was that the Ms. Nancy Roberts who wrote the letter in 1985 might be the one and the same as the Nancy Roberts who became a lawyer ten years later and who has subsequently billed many hours to Imperial Tobacco.

Ms. Roberts was not in the court-room this afternoon, but this did not seem to prevent her from knowing what was going on. Mid-afternoon, her colleague Suzanne Côté came in to express her outrage at any implication that they were the same Nancy Roberts. She asked Justice Riordan to "strike from the record that insinuation that it looks similar to her signature."

Justice Riordan laughed. "I didn't connect it with her," he said. But in any event, there was nothing he could do about the transcript. "Maitre Côté, if you tell me that Maitre Roberts said to you that it is not her signature, then, in my mind, it is not her signature."

But will the real Ms. Nancy Roberts please stand up?

On Monday and Tuesday next week, the trial moves to Vancouver where the testimony of UBC professor James Hogg will be video-conferenced.  On Wednesday, the trial will not sit. On Thursday, Mr. Robert Robitaille will testify. 


Comparative list of Health-Canada related witnesses identified to testify by the defendants
and number of days


Number of days required
As notified by companies on:

Feb 2012
Apr 2013
Aug 2013
Actual
Bacynsky, JA
1
1
Beatty, P
1
1
Bégin, M
2
2
Bouchard B
1
Bray, DF
2
2
Catley Carlson, M
1
Cherry, WH
8
1
Choinière, D
2
2.5
2.5
Colburn, HN
10
Collishaw, N
unspecified
time
12
1
Crombie, D
1
1
Dodge, D
1
Forbes, WF
Fry, JL
1
1
Jean, M
1
Kaiserman, M
5
4
2
Kirkwood, D
15
1
Lalonde, M
7
3
3
3
Law, M
3
16
1
Leclair, M
2
1
Liston, AJ
5
4
3
     2
MacEachen, A
1
Morrison, AB
10
1
Neville, B
Rawson, B
2
2
Rickert, B
1
2
1
Robinson, J
7
1

Rogers, B
1
Total
41
89
30.5
7.5