Day 32 - Reluctant and dissonant witnesses

For information on accessing documents, see note at the end of this post

The ten-day recess of the Montreal tobacco trials ended this morning at 9:30 when the regular crowd of lawyers, clients, court-workers and onlookers stood as Justice Brian Riordan entered the courtroom.

After a glorious week of early summer, the return to the windowless court environment may have felt particularly harsh to the first witness. Almost two months had passed since Imperial Tobacco Canada's former corporate counsel and vice president, Mr. Roger Ackman's first reluctant appearance. Resistance to his subpoena had gone as far as a request to the Court of Appeal, and his manner today suggested he was equally unenthusiastic to provide information to the court.

There were two reasons Mr. Ackman had been recalled:  Exhibit 102A and Exhibit 102B.

Roger Ackman in 1994

These two documents were provided to the plaintiffs by Imperial Tobacco only after Justice Riordan intervened. It is not surprising that there was some reluctance to put them on the court record - they tell two sides of a "heated" dispute between lawyer (Mr. Ackman) and scientist (Mr. Dunn) over the removal of ITL's scientific reports from Canada at the request of BAT.

Today, plaintiff-side lawyer Gordon Kugler wanted to ask Mr. Ackman more about the events that lead to the engagement of the Monitor Corporation / Roger Martin to mediate between the two quarelling vice-presidents. He also wanted to know what was contained on the 5 missing pages from Mr. Ackman's fax to Mr. Martin.

In a small feeble voice, Mr. Ackman gave short feeble replies. "I have no idea." "I have no recollection" "I have no recollection of seeing this document." "I don't recall Roger Martin." "I do not recall writing this memo."

Whether it was Mr. Ackman's disputed feeble state that was behind his inability to reply, or whether there was a less acceptable explanation may never be known. Recognizing, perhaps, that there was no point in questioning a dead horse, Mr. Kugler took no more than 15 minutes before announcing he had nothing mroe to ask and allowing Mr. Ackman to make his second exit from this trial.

There are other witnesses who may be able to throw some light on these events - the recipients of the memos. The plaintiffs reported that they were trying to subpoena the records from the Monitor Corporation, which is head-quartered in the United States.

"Is there anything I can do to help?" asked Justice Riordan and then inquired whether Mr. Roger Martin had been located. Yes, he was told. We have found him, but he doesn't want to talk to us.


What was not put on the court record is that this is the same Mr. Roger Martin who is now Dean of the Rotman School of Management at the University of Toronto.

The dissonant witness

Before the clock struck ten, the second witness had been sworn in.


Mr. Jacques Woods worked in various marketing positions at Imperial Tobacco for the first 10 years of his professional career, before leaving the company in 1984 at the age of 34.

He is now 62, but appears younger. His baby-face,  large frame, gentle manner and somewhat old-fashioned affect lend him the appearance of a boy-scout leader from a simpler era.

Plaintiff lawyer Bruce Johnston took a different approach in his first questions to Mr. Woods than he has with previous witnesses. Rather than go through the customary establishing questions, he leapt to the core of the issues he wanted Mr. Woods to address: "While you were employed, did Imperial Tobacco target youth in its advertising?"

Justice Riordan may have thought this was an oversight, and he suggested politely that it might be useful to get Mr. Woods background on the record.  "I'll get to that, your honour," said Mr. Johnston then returned to  press questions about the company's policies with respect to marketing to youth, and the way they were communicated to staff.

Clearly, Mr. Woods had also expected to be given a chance to say something about himself before answering such pointed questions. He inserted his own introductory framing to his replies.

I  joined Imperial Tobacco right after college. I joined at 24  year old in 1974. I was quite young and low on the totem pole, so I wouldn't know exactly what the policies of the organization was. All I knew was related to my function and context... Remember my age. I was on a learning curve." 

He wasted little time before telling the court that he didn't smoke, and that he worked for Imperial Tobacco as he might have for WonderBra or Dr. Ballards (pet food company) or other products that he did not use himself. He had three sons, he said proudly, suggesting that this explained why he would not have agreed to work for a company that marketed cigarettes to youth.

If he sounded like he was excusing his choice in working for Imperial Tobacco, he did not extend any shame towards the company. Throughout the day he spoke respectfully - at times admiringly - of those who were higher on the totem pole. He referred frequently to the changed context after so many decades, but even then made no direct criticisms of the policies or practices of a company he had left after only 10 years employment.

In response to Mr. Wood's clear statement that neither he nor the company had directed marketing to youth, Mr. Johnston pointed to several documents that suggested a very different practice, including some Mr. Woods had authored:

• Exhibit 347 - a letter from the Creative Research Group, proposing research on campaigns, which notes "du  Maurier has successfully extended its franchise and broadened it to include more younger smokers."
  (The wording of that was a little strange, said Mr. Woods).

• Exhibit 303 - the first of the CRY series, which had worked with focus groups of teenagers aged 15-18 and used this research to develop guidelines on marketing to youth.
  (I think most of the elements there were probably used as guidelines in further communications, said Mr. Woods)

• Exhibit 142B - Project 16 which, in its many observations about young smokers found that "serious attempts to learn to smoke occur between ages 12 and 13."
  (When asked if this caused him personal concern, Mr. Woods replied that "Not a concern. A fact. A reality. This is the life we live in." He said he was not aware of any discussions at Imperial Tobacco of what they could do to prevent youth smoking.)

• Exhibit 350 - a questionnaire on advertising recall, where Mr. Woods had extended the proposed age categories to include 15-19 year olds
  ("If I had been in the company longer, I would have written 'young adults'", Mr. Woods explained)

• Exhibit 351 - a proposal from Mr. Woods for research to increase acceptance of Player's Filter cigarettes among young people.

• Exhibit 140 - where the research guidelines had been amended to include participants as  young as 15 (Mr. Woods wasn't sure that the handwritten annotation to reduce the age had been made by him).

And then there were two?

The trial has already received documents prepared within the strategic planning group (Exhibit 266, 267, 314), but this was the first occasion to question a member of that team.  The three staff people in this "Think Function" were Jacques Woods, Bob Bexon and Maurice Bédard, and they reported to Wayne Knox ("one of the smartest people I knew" according to Mr. Woods).

Bruce Johnston showed Mr. Woods about a memo Mr. Bexon wrote to Wayne Knox in 1984, a few months after Mr. Woods had left the company (Exhibit 267).  It proposed a rather cynical strategy to keep smoking rates high by changing public attitudes and engaging in activities to encourage young people to smoke. He asked the witness and whether it reflected his own understanding of the marketing situation.

It says more about the way Bob Bexon thought.

You worked closely with him for 4 years, was that the sort of thing he expressed?
 He was very different in his interpretation - with the same facts, same logic, he would write differently. He read the reality different

He went on to be president?
Yeah, he did it. I left and did something else.

Bob Bexon, who left Imperial Tobacco to work for its American sister-company (Brown and Williamson) and returned as president around the time these law suits were initiated was killed in a bicycle accident in 2008. Mr. Knox's whereabouts have been unknown (some have thought he also died).  So when Mr. Woods stated that he still had a high regard for Wayne Knox, Mr. Johnston quickly wanted to know more about this other potential witness.

Mr. Knox is still alive? Yes.

Do you know wher he lives? Jacques Woods looked over at the Imperial Tobacco lawyers before answering "Somewhere in Thailand."

Horse sense

Several times over his testimony, Mr. Woods volunteered or was asked about the use of horses in cigarette advertisements.  Project 16 (Exhibit 142B) had found that the Players' horse ad was considered effective with young people as it showed "simple, honest things."  Mr. Woods had earlier recognized the power of these animals for marketing cigarettes, proposing research on  "the appeal of 'horse' subjects as well as the appeal and meaning of horses in general." (Exhibit 354)

Horses, he told the court, were embedded in the promotion of the world's most popular cigarettes, Marlboro. He said that if they weren't used in Canada on cigarette ads, it wasn't because of concerns that they were popular with youth, but because of trademark concerns.

The horses in Marlboro and Players ads ride in wild open spaces - they are "uninhibited and free" as teenagers told the research firms.   At several points today, Mr. Woods sounded like a horse of a different colour -- a  work-horse whose blinkers kept him focused only on what the rider wanted him to see, unaware of the full picture around him.

The thespian judge

Amateur theatrics are part of Justice Riordan past, which may have contributed to his choosing a quote from Moliere's Tartuffe to set the scene for his ruling to dismiss claims of solicitor-client privilege over research commissioned by the industry and conducted by history professor David Flaherty.

Avant que de parler prenez-moi ce mouchoir. ..
Couvrez ce sein que je ne saurais voir:
Par de pareils objets les âmes sont blessées,
Et cela fait venir de coupables pensées.

(Before you speak, pray take this handkerchief...
Cover up that bosom, which I can’t
Endure to look on. Things like that offend
Our souls, and fill our minds with sinful thoughts.)

In his decision, Justice Riordan reflects on the widespread availability of the document that Imperial Tobacco wanted excluded from the trial. Would  it  not be absurd, and tend to make a mockery of the process, to expect the Court to turn its head in falsely pious modesty and exclaim cachez-moi ce document que je ne saurais voir, while everyone else in  the courtroom, including the class members, journalists and the public in general, are reading it on their Blackberries? He sees no alternative but to dismiss the objection and  peek under the handkerchief.

It's safe to say that Moliere is a little more read in Montreal than in London, New York or Tokyo where the parent companies of the Canadian tobacco firms that are on trial are located. So perhaps the message contained in his choice of the uber-hypocrite Tartuffe to represent the company's position will sail over a few legal heads in those cities.

But the reference will not be lost on his colleagues at Montreal's Court of Appeal, to which this like so many of his rulings is destined to be referred.

Although there are more questions for Jacques Woods, he will not be appearing tomorrow. Mr. Andrew Porter, formerly of Imperial Tobacco's research department, is scheduled to testify.

To access trial documents linked to this site:

The documents are on the web-site maintained by the Plaintiff's lawyers. To access them, it is necessary to gain entry to the web-site. Fortunately, this is easy to do.

Step 1: Click on: https://tobacco.asp.visard.ca

Step 2: Click on the blue bar on the splash-page "Acces direct a l'information/direct access to information" You will then be taken to the document data base.

Step 3: Return to this blog - and click on any links.

Day 11 - Ackman not aware of rule against lawyers suppressing evidence

For information on accessing documents, see note at the end of this post.

Much of the first two days of questioning of Roger Ackman, Imperial Tobacco's top in-house lawyer from 1972 to 1999, has focused on the issue of document destruction. On day three of his testimony, Mr Ackman told the court he was not, in fact, aware of an ethical rule prohibiting lawyers from helping to suppress evidence.

At issue was a presentation Mr Ackman gave to a conference on in-house corporate counsel in Toronto in 1985 entitled "Corporate Counsel - A Captive Advisor?" (exhibit 103). The presentation covered the duties and obligations of in-house corporate lawyers. It expounded at length on the challenges of providing objective legal advice on corporate decisions when, often, the in-house lawyer is involved in making the decisions.

Plaintiff lawyer Bruce Johnston asked Mr Ackman to read the following passage from his presentation:

[I]t is my view that if the various professional codes of conduct are carefully read, they will provide most of the answers that corporate counsel is looking for in charting an ethical course of behaviour.

Mr Johnston then asked Mr Ackman if he had been aware of a prohibition on counsel against aiding in the suppression of evidence.

"No sir," answered Mr Ackman.

This was one of the few illuminating moments of Mr Ackman's third and final day of examination by the plaintiffs. Mr Ackman was more combative today than on the first two days, interrupting questions and refusing to answer questions even more frequently than during his first two days.

A typical exchange came when Mr Johnston was questioning Mr Ackman about Imperial's claim that it does not encourage people to smoke. Mr Johnston asked Mr Ackman, as a member of Imperial's management committee, why the company had this policy. Mr Ackman said he did not know.

"You don't know why?", Mr Johnston asked.

"It was a legal product," Mr Ackman replied.

"ITL was in business to make money?," Mr Johnston asked.

"As is the government," Mr Ackman said.

This answer brought a chorus of laughter from the tobacco industry observers in the public gallery.

Mr Johnston pressed on through the tobacco industry laughter: "If it's a legal product and you want to sell as many as possible, why wouldn't you encourage people to smoke?"

"I don't know", Mr Ackman replied.

"Is it because people died from using it?", Mr Johnston asked.

"I won't answer that", Mr Ackman said.

Later, Mr Johnston introduced into the evidence a memo (exhibit 107) sent to Mr Ackman in 1992 by British American Tobacco (BAT), Imperial's UK-based parent company, regarding an article that had recently been published The Lancet medical journal. The article estimated that almost 20% of deaths in the developed world were caused by smoking and that smoking would kill 21 million people in the developed world in the decade of the 1990s.

Under the heading "POINTS THAT CAN BE MADE IN ANY MEDIA RESPONSE", the memo said:

The premise of the paper is that smoking has been proven to cause diseases such as lung cancer. This, however, is still a matter of scientific controversy.

Mr Johnston asked Mr Ackman if the company's position that smoking had not been proven to cause lung cancer was important for litigation purposes.

"It's a much debated topic," Mr Ackman replied.

Mr Johnston tried again: "My question to you is, as a lawyer, was the issue of admitting or not admitting smoking caused lung cancer an important issue?"

Mr Ackman would not answer directly: "We produced a legitimate product, authorized by the government, for the government's purposes and our purposes."

Mr Johnston later came back to the document destruction issue. He pointed out that, when the issue became public in 1998, Imperial spokesman Michel Descôteaux said in a media interview: (exhibit 35)

[W]e didn't destroy the originals, the originals were not ours, we didn't have them in our files anyway. So all we did was get rid of useless paper clogging up our files.

However, a memo written by Mr Ackman in July 1992 indicated that the reports under consideration for destruction had been divided into three lists before being sent off to lawyer Simon Potter (exhibit 76).

Mr Johnston asked Mr Ackman why the documents were divided into three lists if the purpose of sending them off to outside counsel was just to clear out space in filing cabinets.

"I don't know what that means," Mr Ackman replied.

"Why were the documents sent to outside counsel divided into three lists?", Mr Johnston asked again.

"I have no recollection," Mr Ackman said.

"Did it have anything to do with how compromising they were?"

"I don't think I ever saw the documents, so I don't know."

Mr Johnston next asked if Mr Ackman agreed with him that Imperial had an obligation to know its product, and that a lawyer must not suppress evidence.

"As far as I know, the records exist," Mr Ackman retorted.

"Is it your testimony that those documents would be discoverable?" Mr Johnston asked.

"We had access to them," Mr Ackman replied.

Mr Johnston pressed the point that documents destroyed or sent away would not be discovered in litigation. They would not be in Imperial Tobacco's possession.

"We had access at all times," Mr Ackman insisted. "If Imperial asked for them, they would be returned."

"And if plaintiffs asked for them?", Mr Johnston asked.

"I have no answer for that", Mr Ackman replied.

It's Their Problem

Mr Ackman was more forthcoming on his view of who is responsible for children smoking. Mr Johnston asked him if he was aware that most people who smoke start smoking before age 18.

"I don't know that," Mr Ackman replied.

Mr Johnston asked if knowing this would have changed his earlier answers.

"People make choices. It's a legitimate product. I don't make their choices for them," Mr Ackman replied.

"So it's their problem?", Mr Johnston asked.

"It's their problem," Mr Ackman said.

Imperial Complains

In the afternoon, Imperial lawyer Deborah Glendinning asked Justice Riordan to force Mr Johnston to retract comments he made in a Radio-Canada interview, broadcast that morning, to the effect that the plaintiffs only found the destroyed documents because Imperial destroyed them imperfectly. She pointed out that, although Imperial did not provide the documents to the plaintiffs, they told the plaintiffs how to find them elsewhere during the pre-trial discovery process.

Mr Johnston retorted that his media comment was fair, based on the evidence, because they only found out about the destroyed documents as a result of letters referring to their destruction becoming public through American litigation.

Justice Riordan swiftly dismissed the request. "I cannot and will not issue an injunction," he said. He added that he would not tell experienced lawyers how to conduct themselves outside the courtroom, but noted that he learned the hard way as a young lawyer that it is not preferable to try a case in the media.

Documents Become Public

Also in the afternoon, Imperial Tobacco gave consent for seven documents containing their corporate organization charts, to be entered as exhibits 112A, 112C, 112D, 112E, 112F, 112G and 112H. Exhibit 112B was reserved, but may be admitted to the record later. The charts span from 1976 to 1997.

The lawyers also resolved the issue of assigning exhibit numbers to the destroyed (and now recovered) documents. Since lawyer Simon Potter's letters referring to their destruction are already in evidence as exhibits 58 and 59, each of the destroyed documents will be given exhibit number of 58-1, 58-2 and so on, or 59-1, 59-2 and so on, depending on which of Mr Potter's letters referred to its destruction.

At the time of publication of this blog, the destroyed studies are not yet publicly available on the plaintiffs' online document database, but they should be posted soon. The simplest way to find them when they are posted would be to click on the "search" option at the top of the main page, then search for either "58" or "59" in the "exhibit number" field. This should produce Mr Potter's letter and the studies whose destruction are referred to in the letter because they will all contain the number 58 or 59 in their exhibit number.

No witnesses are scheduled for Day 12 of the trial (tomorrow), which has instead been set aside for legal arguments on two motions: 1) the plaintiffs' motion alleging abuse of process by the defendants, and 2)Imperial Tobacco's motion to quash the plaintiffs' subpoena of one of Imperial's Toronto-based lawyers.

To access trial documents linked to this site:

The documents are on the web-site maintained by the Plaintiff's lawyers.  To access them, it is necessary to gain entry to the web-site.  Fortunately, this is easy to do.


Step 1:  Click on:  https://tobacco.asp.visard.ca


Step 2:  Click on the blue bar on the splash-page "Acces direct a l'information/direct access to information" You will then be taken to the document data base. 


Step 3:  Return to this blog - and click on any links.



By Michael DeRosenroll for Cynthia Callard

Day 10 - Some of the Destroyed Documents Come to Light

For information on accessing documents, see note at the end of this post.

The second day of retired Imperial Tobacco General Counsel Roger Ackman's testimony began with the lawyers battling over the admissibility of study reports destroyed by the company in the early 1990s but now recovered from British American Tobacco (BAT), Imperial's UK-based parent company.

The night before, plaintiff-side lawyer Gordon Kugler had given Mr Ackman five of the roughly 100 studies to read so that he could answer questions about them. But Mr Kugler had hardly begun questioning Mr Ackman on the first study (a 1974 study called "Experimental Tumorigenesis in the Hamster Larynx") when Mr Ackman, seeming to forget he was there as a witness and not Imperial's lawyer, started objecting to the judge about the questions rather than answering them.

Mr Ackman objected that he was not competent to answer questions on the studies because he is not a scientist. Justice Riordan replied that he needed to hear what Mr Kugler was actually going to ask him about the studies before he could decide if the questions were fair.

Imperial lawyer Deborah Glendinning took up Mr Ackman's objection, arguing that the studies should not be admitted as evidence through this witness because he had no recollection of ever seeing them before this trial. Mr Kugler retorted that the studies were already part of the trial record through the pre-trial examination of former BAT lawyer John Meltzer, which took place earlier in the United Kingdom, and added that his questions for Mr Ackman about the studies had nothing to do with science.

After a lengthy spirited argument, Justice Riordan decided to admit the studies to the trial record but to decide later how much weight to give the contents of the studies. However, the lawyers then got bogged down on how to assign exhibit numbers to so many documents. To allow Mr Kugler to get on with questioning Mr Ackman about the five he had given Mr Ackman to review, Justice Riordan assigned temporary exhibit numbers to those five. Thus, only these five studies were added to the trial record today, pending a later decision on assigning exhibit numbers to the rest.

The introduction to the first study said:

Several investigators and our own experiments have show that tobacco smoke acts as a tumour promoter when applied repeatedly to the skin of mice with a single pretreatment with a low dose of a chemical carcinogen, such as DMBA. This information suggested that inhaled tobacco smoke might likewise act as a promoter in respiratory carcinogenesis...

Mr Kugler asked Mr Ackman if he believed, as a member of Imperial's management committee, that Imperial should have shared this 1974 study with the government and the public. Mr Ackman said he did not know.

Next came a 1976 study called "A Review of the Genetics and Consequences of α1-antitrypsin Deficiency".

The introduction to this study said:

The occurence of emphysema of the lung has been associated with cigarette smoking, although there is evidence that the susceptibility to emphysema is inherited. During the last twelve years strong evidence has accumulated that a deficiency in the blood serum level of the enzyme α1-antitrypsin (α1-AT) pre-disposes people to emphysema, and that it is this deficiency which can be inherited. Consequently, for individuals with such a pre-disposition, smoking could be hazardous.

Asked if he believed, as a member of Imperial's management committee, that Imperial should have shared this information with the government and the public, Mr Ackman said "I have no opinion, sir."

Third came a 1989 study called "The Analysis of Coumarin on Tobacco by Thermal Desorption/Gas Chromatography/Mass Spectometry".

The introduction to this study said:

In 1988, the Additive Guidance Panel of BATCo advised on the basis of "in vitro" toxicological evidence that coumarin should no longer be added as a flavour to tobacco blends.

Mr Ackman could not recall the Imperial Tobacco management committee ever discussing removing coumarin from the company's products.

Next came a 1980 study called "A Comparative Inhalation Study on Smoke from Cigarettes with Different Filters".

The summary section of the study said:

If, therefore, the human smoker shows a parallel reaction and also inhales less irritant smoke more readily, then the inferred benefit of vapour phase filters is undermined to a degree.

Mr Ackman could not recall the Imperial Tobacco management committee ever discussing the company's use of filters on cigarettes. He also could not think of any reason why Imperial Tobacco should not have shared the information in this study with the government.

Last came a 1976 study called "Compensation for Changed Delivery".

The summary section of the study said:

On balance, it is concluded that many established smokers do compensate for changed delivery in an attempt to equalize nicotine delivery, when this is possible.

Mr Ackman said he had no opinion on whether the information in this study should have been provided to the government or the public.

A Disastrous Consequence

After finishing with the five studies, Mr Kugler moved on to a 1975 memo from BAT to its affiliates (exhibit 79). The memo spoke of "disastrous consequences that would result from any Group Company voluntarily accepting a warning on packs or advertisements which was not attributed to government or the medical authorities."

Asked if he could think of any reason why this would be disastrous, Mr Ackman said "I suppose that would discourage people from smoking."

"And that would be a disastrous consequence?", asked Mr Kugler.

"I can't answer it that way, sir", replied Mr Ackman.

The Evolution of Imperial's Document Retention Policy

Mr Kugler spent the last part of the day running rapid-fire through a series of exhibits to establish a timeline of the evolution of Imperial's document retention policy.

Evidence yesterday showed that Mr Ackman was communicating with BAT during the trial for the tobacco companies' constitutional challenge to the Tobacco Products Control Act (Bill C-51) in 1989. A daily trial update (exhibit 68) called the judge's decision not to admit BAT documents into evidence "a major victory".

In January 1990, legal representatives from Imperial, BAT, Brown & Williamson (BAT's US affiliate) and BAT's German affiliate met in New York to discuss "what R+D documents their own company currently sends off-shore and also what document retention policy, if any, is currently in place within their companies" (exhibit 82).

In February 1990, BAT outside counsel John Meltzer came to Imperial Tobacco's headquarters in Montreal (exhibit 84). Mr Ackman testified that Mr Meltzer came because he wanted to see what BAT documents Imperial had in its possession.

Later the same month, BAT lawyers Stuart Chalfen and Nick Cannar also travelled to Montreal to meet with Mr Ackman "on the subject of the revised Research Contract and Document Retention Policy" (exhibit 85).

In June 1990, Mr Ackman phoned BAT lawyer Nick Cannar to advise him that evidence in Bill C-51 case had closed and that Mr Ackman now proposed "to proceed with the implementation of the Document Retention Policy" (exhibit 87).

In August 1990, Imperial's Management Committee approved a new document retention policy proposed by Mr Ackman (exhibit 89). This policy called for Imperial to retain BAT research reports permanently.

In September 1990, BAT lawyer Stuart Chalfen wrote to Imperial President Jean-Louis Mercier requesting that the document retention policy just approved be modified so that Imperial would only retain BAT research reports for five years, rather than permanently (exhibit 90).

In October 1990, Imperial's Management Committee revised the document retention policy to reflect the change requested by BAT (exhibit 95).

In February 1991, Imperial's Management Committee approved a new access to documents agreement with BAT (exhibits 96 and 96A).

In September 1991, Mr Ackman travelled to the United Kingdom where he met with BAT lawyer PL Clarke. Clarke followed up on the meeting by sending Mr Ackman a draft proposal for BAT to demand, in accordance with the access to documents agreement approved earlier that year, "the return of all BATCo research reports and any other
BATCo research documents, which have not already been destroyed by Imperial Tobacco in accordance with its own document retention policy, together with any copies of such documents" (exhibit 100A). However, Mr Clarke noted in the cover letter to Mr Ackman "that perhaps we will be able to reach some agreement under which the documents in question are destroyed rather than having to arrange for them to be physically returned" (exhibit 100).

At the end of the day, Mr Kugler attempted to introduce a "memo to file" about the document retention policy from an Imperial Tobacco R&D employee who is now deceased. The industry lawyers objected, so the document had to be placed on reserve pending a later ruling by the judge on its admissibility.

To access trial documents linked to this site:

The documents are on the web-site maintained by the Plaintiff's lawyers.  To access them, it is necessary to gain entry to the web-site.  Fortunately, this is easy to do.


Step 1:  Click on:  https://tobacco.asp.visard.ca


Step 2:  Click on the blue bar on the splash-page "Acces direct a l'information/direct access to information" You will then be taken to the document data base. 


Step 3:  Return to this blog - and click on any links.



By Michael DeRosenroll for Cynthia Callard

Day 9 - Imperial's Long-Time Lawyer Takes the Stand

For information on accessing documents, see note at the end of this page.

The hallway outside the downtown Montreal courtroom was so filled with cameras that it was difficult to make it through on the first morning of week three of the trial. More seats in the public gallery were filled than usual, some by journalists with pen and notebook in hand.

They came for the testimony of Roger Ackman, who was General Counsel for Imperial Tobacco from 1972 until his retirement in 1999. The media interest may have been piqued by an article in the morning's edition of La Presse setting the stage for Mr Ackman's testimony in connection with the Imperial Tobacco document destruction issue.

Procedural Updates

But before Mr Ackman could take the stand, the judge and lawyers needed to discuss two upcoming motions. Their discussions brought to light that, while testimony was paused last week, the plaintiffs' lawyers filed the abuse of process motion that they had given the court verbal notice of the week before, regarding the tobacco companies' refusal to admit the authenticity of several documents in the first two weeks of the trial.

The plaintiffs also subpoenaed a partner in Imperial's law firm in Toronto to testify in order to establish the authenticity of documents provided to the plaintiffs by the firm during the pre-trial disccovery process. Imperial has moved to quash this subpoena.

Justice Riordan scheduled the legal arguments on the abuse of process motion and the motion to quash the subpoena for Thursday.

The "Spirit and Brain" of Imperial Tobacco

Finally, Mr Ackman, 73, took the stand, his thinning hair neatly combed, his suit reminiscent of Dustin Hoffman's in Death of a Salesman. Introductory questions from plaintiff lawyer Gordon Kugler established that Mr Ackman graduated from McGill law school in 1963, joined Imperial's legal department in 1970 and became General Counsel in 1972. Mr Ackman also testified that he was simultaneously a Vice-President of Imperial, a member of Imperial's management committee alongside the company President and other Vice-Presidents, and General Counsel for Imasco, the holding company that wholly owned Imperial at the time. At times, British American Tobacco (BAT) owned a majority of the Imasco shares and at other times it was a significant minority shareholder.

Later in the day, when Imperial lawyer Deborah Glendinning objected to one of Mr Kugler's question, Justice Riordan called Mr Ackman part of the "spirit and brain" of the company in explaining why he was dismissing the objection.

Mr Ackman's answers were, by and large, very short, often just "yes, sir", "no, sir" or "I don't know that, sir". He often interrupted Mr Kugler with his brief answers before the plaintiff lawyer could finish his questions, especially when being pressed for clarification of an earlier similarly-worded answer. It did not take long for Justice Riordan to rule that Mr Ackman was partial to Imperial Tobacco, opening the door for Mr Ackman to question him cross-examination style. At one point, the judge reminded Mr Ackman that witnesses were there to answer questions, not to ask them.

Late in the day, Mr Ackman shouted at Mr Kugler when Mr Kugler questioned him on whether Imperial's management committee ever discussed the fact that the vast majority of people who smoke start smoking in their youth.

"I chose not to smoke!", Mr Ackman shouted loudly enough to send feedback from the courtroom speakers back through his microphone. "I don't have to give a reason. I chose not to smoke. Neither of my children smoke," he continued.

"Did you tell them not to?", asked Mr Kugler.

"No," said the witness.

At another point, Mr Kugler overcame the objections of Imperial Tobacco in order to ask Mr Ackman about his personal view, as a member of the management committee, on whether Imperial had a duty to make sure its products did not harm consumers.

Mr. Ackman replied that they sold a legal product and added, "We did precisely what we were entitled to do, all in accordance with the government."

"Do you make a distinction between the product being legal and harmful to the health of consumers?", pressed Mr Kugler.

"I am trying not to make that distinction," Mr Ackman replied.

Mr Kugler pressed the witness further on whether he personally felt it was acceptble to sell a product that harmed consumers, as long as it was legal.

"It was their choice to smoke, the government didn't ban the product," Mr Ackman said.

Later, Mr Ackman did state that, in his personal opinion, nicotine was addictive. He could also recall no instance when Imperial's management committee ever discussed the health effects of smoking or the fact that most people start to smoke as youths. Even when Mr Kugler showed him the 1995 Supreme Court of Canada decision that held unanimously that smoking caused the premature death of over 30,000 Canadians annually, Mr Ackman could not recall anyone raising product harmfulness at the management committee level.

Document Destruction and "A Major Victory"

Mr Kugler began but likely did not finish questioning Mr Ackman on the document destruction issue today.

Mr Ackman's memory was spotty, but sometimes improved when Mr Kugler showed him documents. Although previous witness Michel Descôteaux vividly remembered running to Mr Ackman's office for information when the media called about the document destruction issue on September 15, 1998, Mr Ackman could not recall talking to Mr Descôteaux about the press release Imperial issued that day (exhibit 57).

The press release said:

All of the studies referred to in the documents filed by the anti-tobacco groups were copies only of B.A.T. documents, the originals of which are, as always, in B.A.T. posession. Copies of these documents currently exist elsewhere and, for the most part, are readily available. (emphasis in original)

Mr Ackman could not recall how these documents were "readily available" or whether the phrase "for the most part" meant some of the documents were not readily accessible. However, he did testify that he assumed what the company said in the release was "correct". Earlier in the day he had testified that he would have expected the public to be able to rely on a statement in an Imperial Tobacco press release and that anything in a release would be "honest", "truthful" and "complete."

Although the press release said "ITL, just like other companies, has a policy of reviewing its files periodically," Mr Ackman could not recall any other time when Imperial destroyed research documents.

Asked why outside lawyer Simon Potter was involved in document destruction, involvement referred to in exhibits, Mr Ackman said he hired Mr Potter to settle the matter with BAT.

"That implies there was a matter," Mr Kugler said, and asked what the matter was, but Mr Ackman said he could not recall what.

After lunch, Mr Ackman testified that BAT pressured Imperial to destroy the research documents, though he said he could not recall why. He also could not recall why lawyers instead of researchers decided which documents to destroy. Mr Ackman also recalled that he initially opposed BAT's pressure to destroy the research documents unless Imperial would retain access to them, but could not recall if this issue was ever addressed.

His memory might have been refreshed after having had time to think over lunch. Before lunch, Mr Kugler had introduced correspondence between Mr Ackman and BAT lawyers, from late 1989 and early 1990, as exhibits [68, 69, 71, 72, 72A and 74].

On October 4, 1989, Mr Ackman circulated a memo (exhibit 68) to senior Imperial and Imasco management, as well as lawyers for BAT and Brown & Williamson (a US-based BAT subsidiary) and various others that might be relevant to why they would want to destroy certan research documents in Imperial's hands. Mr Ackman said could not recall why he included a Brown & Williamson lawyer on the distribution list.

Attached to Mr Ackman's cover note was a daily trial report from the constitutional challenge to the federal Tobacco Products Contol Act that was going on at that time. Mr Ackman could not recall if he or another lawyer wrote the report. The report noted that the trial judge had provisionally excluded "studies by or for BAT in ITL's posession" from discovery because only Imperial, the Canadian subsidiary, was a party to the case. Only Imperial was suing the federal government, making BAT a third party. The daily report called this "a major victory".

To access trial documents linked to this site:

The documents are on the web-site maintained by the Plaintiff's lawyers.  To access them, it is necessary to gain entry to the web-site.  Fortunately, this is easy to do.


Step 1:  Click on:  https://tobacco.asp.visard.ca


Step 2:  Click on the blue bar on the splash-page "Acces direct a l'information/direct access to information" You will then be taken to the document data base. 


Step 3:  Return to this blog - and click on any links.

By Michael DeRosenroll for Cynthia Callard