In May 1969, November 1987 and January 1988, the heads of Canada's tobacco companies appeared before a Parliamentary committee and were asked about their position on whether or not their products caused lung cancer or other diseases. On each occasion they were emphatic that they did not accept that tobacco causes any disease, saying that "the issue is still unresolved."
Fast forward three decades and a dozen lawsuits: the same companies are now telling Canadian courts that since the mid 1960s there has been no doubt about the fact that cigarette smoking causes lung cancer, that it was "common knowledge" at the time and that those who had doubts were "outliers".
The unresolved issues today are whether or not the company presidents were liers or outliers and, if the former, whether they can ever be held responsible for using Parliament as part of their efforts to mislead the public.
The question has a fresh context in light of a ruling last month by Justice Barbara Conway, who was asked by Imperial Tobacco to "strike down" several claims made against it by the Ontario government as part of its $50 billion dollar claim for the health care costs related to tobacco use in that province.
Justice Conway agreed with Imperial Tobacco that their comments before Parliament were protected by the "freedom of speech" contained within Parliamentary privilege: "Once a person attends and participates in a Parliamentary committee proceeding, the absolute privilege applies to his statements made in the course of that proceeding, with the result that the statements cannot be used in a civil action against him."
The decision of Justice Conway to delete several portions of the government's claim is a victory for the defendant tobacco companies in the many actions now underway in Canada. But it is a victory that Parliament has the ability to uphold (through its silence) or to overturn (through its own sanctions).
Justice Conway took the view that "It is Parliament, not the court, which has the power to impose sanctions for the misleading statement. If the courts were permitted to adjudicate on the misleading statement, they would be intruding on the jurisdiction of Parliament.. there would be a risk of conflicting decisions as between the court and Parliament, which is one of the very things that the privilege is intended to avoid."
In striking down portions of the Ontario government's claim, this judge took a very different approach than her colleagues at the Quebec Superior Court had done in the Blais/Létourneau trials.
When similarly asked to strike down sections of those claims, Justice Carole Julien ruled in 2006 that it was premature to do so before the plaintiffs had an opportunity to provide context. "Le Tribunal ne décide pas à ce stade de la valeur des objections qui pourront être formulées par les défenderesses. Si les déclarations des représentants des défenderesses ne sont pas protégées par le privilège de l’immunité parlementaire, elles paraissent, à première vue, présenter un degré de pertinence suffisant pour que les allégations y référant ne soient pas radiées."
In June 2012, the issue was subsequently raised before Justice Riordan (he inherited the Blais/Létourneau actions from Justice Julien in 2008). In a day-long hearing Justice Riordan was presented with seemingly identical arguments as those presented this year to Justice Conway.
Yet he did not accept that the companies were entitled to a blanket Parliamentary immunity even after the trial had commenced. (His decision, communicated by letter to the parties was described by Imperial Tobacco last May as one to "refrain from definitely ruling on Parliamentary privilege objections for the moment.").
Justice Riordan later clarified that: the case law, however, holds that the Privilege does not apply where the Statement is "repeated" outside of Parliament (or its committees), i.e., the person who made it repeats it in public, whether orally or in writing. In that case, the Privilege does not apply to the repetition, although there is disagreement among the parties as to whether the Privilege is lost with respect to the original Statement.
Perhaps Justice Riordan's final ruling will parse the distinctions between freedom of speech before parliament and freedom of speech outside of parliament for what was said inside. Or perhaps not: there may be enough evidence without entering into that judicially arguable zone!
Where Justices Riordan and Conway did agree was in noting that Parliament had the ability to waive any privilege that the tobacco companies are claiming. The privilege belongs to Parliament and not to the defendants.
When Justice Riordan asked the Blais/Létourneau plaintiffs whether they had asked Parliament to do so, he was told that their initial inquiries suggested to them that it was a request that Parliament would turn down.
Who, one might wonder, would have the power to arrive at such a decision? And why are Parliamentarians - government and opposition - seemingly indifferent to this part of their history?