Day 133: Iron (Mountain) Filings

It was the end of the sitting week at the Montreal Tobacco trials, and the day was short and mostly sweet.  The only item of business was the (likely final) testimony of Jacques LaRivière, the former head of public relations for the Canadian Tobacco Manufacturers Association.

It was a much more relaxed Mr. LaRivière than this witness had seemed when he first entered this courtroom ten months ago. He greeted Justice Riordan this morning with a hearty "BonJOUR!" and joked a bit about his age.

This man could have been forgiven a more sombre reflection on the passage of time -- over the past month two of his former colleagues from the CTMC have passed away. Bill Neville died on March 13, and Jean Clavel died ten days later.

The purpose for recalling this witness was to allow him to vouch for documents that had surfaced as a result of the archives of the CTMC becoming available to the plaintiffs mid-trial - many months after he had this witness first appeared last spring. Some of these documents came from an indexed archive in British Columbia, and others from the Iron Mountain storage facility outside of Ottawa.

Of the thousands of documents that were reportedly handed over at the beginning of the year, only a trickle have found their way onto the trial record.  Most of thosepresented today as Exhibits 1486 to 1496 were CTMC publications, material from INFOTAB or the Tobacco Institute, or documents related to the CTMC's activities in the lead up to the passage of Canada's first tobacco control laws.

The questions asked by Mr. André Lespérance as he led the witness through the documents resulted in very little additional information being provided to the trial. Despite his gentle efforts, he was unable to encourage Mr. LaRivière's memory to function well enough to remember much of anything. Even though he headed up the communications function of the CTMC, Mr. LaRivière could not even recall the newsletter Tabacum which was issued under his direction.

Francois Grondin (representing JTI-Macdonald) was the only company lawyer to cross-examine Mr. LaRivière. His style of questioning is as laid-back as that of Mr. Lespérance, yet it was notably more effective at eliciting a clear memory from this witness. Perhaps it was their shared relationship with the tobacco company as a client that helped lawyer and witness find more memorable moments!

Although the witness had not much to say, the documents may - as they say in this business - speak for themselves. We will have to wait until they are posted on the plaintiff's web-site to find out!  (At this stage of the trial, the new exhibits mostly come from sources that have not previously been indexed, which causes a natural delay in their becoming available).

Watch for an update on this post when the material is public.

Next week the trial is scheduled to sit on Monday afternoon as well as Tuesday. Justice Riordan has insisted that the companies provide details on their schedule of witnesses, and the discussion of this is expected on Tuesday.

Day 46: If there's a contradiction, there's a contradiction

Former Imperial Tobacco marketing executive Jacques Woods arrived almost ten minutes late for his third (non-consecutive) day of testimony because he stopped in the hall just outside courtroom 1709 to have a conversation with Rothmans, Benson and Hedges lawyer Jean-François Lehoux as the rest of the lawyers and court observers sat waiting inside. When Mr Woods finally did stroll into the courtroom at almost twenty-to-ten, he stopped to greet some of the other tobacco industry lawyers with big smiles and hearty handshakes, seemingly working the industry side of the room like a politician. Once he finally settled into the witness stand, the court staff called the judge so that the day could get underway.

It didn't take long for Mr Woods to lose his jolly demeanour once plaintiff-side lawyer Bruce Johnston began questioning him. Mr Woods would spend most of the remainder of the morning frowning at Mr Johnston, the smile he had on his face while greeting the tobacco industry lawyers long gone.

Mr Johnston began by delving into the issue of whether Imperial Tobacco marketed its brands with implied health claims. Mr Woods initially insisted that Imperial never marketed its products this way, so Mr Johnston directed him to Exhibit 133. This exhibit is an April 1978 memo by Anthony Kalhok, Imperial's Director of Marketing and Mr Woods' boss, in response to a request that went to him and other senior Imperial Tobacco executives to select, from a list of fifty statements, the six with "the most important implications for the future of our tobacco business". One of the six statement that Mr Kalhok selected was option #42: "Companies will increasingly sell products for which health claims may be implied." He then wrote:

With the exception of #42, we will have to find ways and means to stall the implementation of the above or counteract their effects.

Mr Johnston pressed the witness to either provide a good explanation for what his boss apparently believed or change his testimony that Imperial did not market its products with implied health claims, but Mr Woods would do neither. Justice Riordan eventually grew impatient with the verbal dance the lawyer and witness were engaged in jumped in to cut off the line of questioning: "I don't see what trying to get into Mr Kalhok's mind is going to get us. [Mr Woods has] told you what's in his mind. If there's a contradiction, there's a contradiction."

"And I submit that there isn't", interjected Imperial Tobacco lawyer Deborah Glendinning.

"That's for me to decide," the judge replied.

Justice Riordan's intervention here pinpoints a critical issue in the case. Since the plaintiffs need to rely to a large extent on witnesses who are current and former tobacco industry executives or employees, most of whom are very partial to the defendants, there is a pattern so far of these witnesses testifying to try to minimize or deny any wrongdoing by their employers. The plaintiffs need these witnesses to get a lot documentary evidence onto the record, but they also need to counteract their minimizing or denying testimony. The main way for them to do this is to confront these witnesses with contradictory evidence, like Mr Johnston did to Mr Woods with Exhibit 133 regarding the use of implied health claims to market cigarettes. Sometimes this spurs the witnesses to change their testimony, occasionally a witness has had a good credible explanation for why the document is not what it seemed on its face but, most of the time, like in the exchange above between Mr Johnston and Mr Woods, the witness doesn't have a good explanation but won't change their story either. This is where it will ultimately fall to the judge to examine the contradictions and assess the credibility of the witnesses.

This pattern continued during the remainder of Mr Johnston's examination of Mr Woods. Judging by his words and facial expressions, Mr Woods did not seem to like being confronted with contradictions by Mr Johnston, at one point complaining that Mr Johnston's questions were wasting his time. Mr Woods seems to have a very high opinion of his own intelligence as well; at one point Mr Woods heaped praise on a former colleague as having been extremely intelligent and mentioned that he needed to ask Imperial to pay for him to get remedial statistics training to keep up with the smart young people who were coming into the marketing department in the late 1970s. When Mr Johnston summarized Mr Woods' testimony as having been that this colleague was smarter than him, Mr Woods interrupted to say "I never said he was smarter than me."

Mr Johnston came back to the issue of implied health claims by introducing Exhibits 511 and 511A. Exhibit 511 was Mr Woods' personal hand-written notes (in French, his first language) taken while going over some survey data comparing whether to market Trojan cigarettes in French as "la plus douce" (the freshest) or "la plus faible" (the mildest). Exhibit 511A was the memo he later produced on the subject (in English). Mr Woods' wrote in his notes that the survey repondents associated "la plus faible" with reduced nicotine for better health. This was the slogan he recommended.

Mr Johnston asked Mr Woods if it would be fair to say that, when he recommended "la plus faible", he did so in full awareness that some people would take this to mean it was a healthier cigarette. Mr Woods replied that, even if some people saw it that way, that was not his goal.

Exhibit 512 was a 1977 study on attitudes toward Imperial's Peter Jackson brand. Mr Johnston honed in on the following line: "Former PJ smokers could be divided into two groups. The first on (undoubtedly the largest group) remain very positive about the brand because they switched to a perceived milder brand due to health concerns." When asked by Mr Johnston if marketing had an impact on people perceiving other brands as milder, Mr Woods minimized the impact of advertising but did note that Imperial worked on developing products that tasted milder and this "seems to have succeeded with these people."

On cross-examination, Imperial Tobacco lawyer Craig Lockwood led Mr Woods to say that the reason Imperial did extensive research on teen smokers below the age of 18 was that that is the age that most brand switching occurs, so research on that age group is necessary in order to understand brand switching (although this did not explain why Exhibit 158, a test marketing plan for Player's Light codenamed "Project Huron", identified males aged 15-25 as the target audience).

Mr Lockwood also led Mr Woods to try to explain away compromising statements in memos produced when Mr Woods was part of Imperial's strategic planning group by leading him to say that ideas from the strategic planning group were often "blue sky exercises" (Mr Lockwood's words) that were never implemented.

Two Other Witnesses Return

Once Mr Woods' testimony wrapped up in the late morning, former Imperial research scientist Andrew Porter returned to wrap up his testimony as well. Mr Porter had already been cross-examined by the industry lawyers, so plaintiff lawyer Pierre Boivin was limited to redirect questioning on topics raised during cross-examination. During Imperial lawyer Deborah Glendenning's cross-examination, she led Dr Porter to minimize the health effects of smoking by pointing out that, like cigarette smoke, water and barbeque contain carcinogens. (Blurring the health risks of smoking by drawing false equivalencies between tobacco and other less harmful products, most commonly alcohol, is a common tobacco industry tactic.) Justice Riordan quickly grew impatient with Mr Boivin's questioning to establish the rather obvious fact that eating barbeque is far far less harmful to health than smoking, perhaps because by this point the morning court session was in overtime and all the talk of barbeque was reminding everyone that it was lunch time.

Mr Boivin wrapped up with Dr Porter by returning to the issue of why Imperial did not inform the public about Dr Porter's research that showed that smokers compensated for so-called light and mild cigarettes by inhaling more deeply. Dr Porter repeated his earlier answer that his audience was the scientific community, and it was the responsibility of journalists to report on the findings he published in scientific journals if they found them newsworthy.

The afternoon saw the completion of the testimony of retired Canadian Tobacco Manufacturers' Council communications officer Jacques Lariviere. A few new exhibits came in through his testimony which, at the time of publication of this blog, are not yet posted on the plaintiffs' website. Some of these exhibits had to do with second-hand smoke, which brought on numerous objections from the industry lawyers and lengthy debates over the objections. This is because the court has previously ruled that second-hand smoke is not an issue in the trial except to the extent that the industry's conduct concerning on second-hand smoke affecting smoking rates, like efforts to dismiss or minimize the health effects of second-hand smoke to make smoking more socially acceptable.

Mr Lariviere, an older overweight man who needed to sit during his testimony, seemed to struggle with having to leave and re-enter the courtroom so many times while the lawyers debated the industry objections, but he took it with good humour joking with Justice Riordan that he needed the excercise anyway. Instructions for accessing the latest exhibits can be found at the bottom of this blog entry.

Tomorrow, the last trial day before the two month summer pause, no witnesses are scheduled, but the lawyers are scheduled to make legal arguments.

By Michael DeRosenroll for Cynthia Callard

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 43 : The man who saw so much (but remembers so little)

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

Thursday, June 14 was Jacques LaRivière's second day of testimony at the Montreal trials of the tobacco class actions, and it is hard to imagine a more uncomfortable witness.

The questions put to him by plaintiff lawyer Philippe Trudel were for the most part quite straightforward (do you remember this document? what did you mean by this word?), and always presented in a cordial and respectful way. Nonetheless, Mr. LaRiviere looked like he felt trapped in a situation where, as in a Monty Python sketch, the wrong answer would send him catapulting into the distance. He paused. He muttered under his breath. He scrabbled through the heavy binders of documents in front of him. By the afternoon, he reverted more often and more quickly to denying any knowledge or memory.

Mr. LaRivière had been scheduled to testify for two days, but by the middle of this second day it was clear that more time was necessary.  When being told at lunch that he should expect to be recalled for a third day, he shook his head violently at the plaintiff's bench. The cross-examination that had been expected today will not happen until next week, or possibly later.

Despite his reticence, the man who managed communications for the Canadian Tobacco Manufacturers Association from 1979 to 1994 provided some of the clearest testimony todate on some of the key issues before the trial.

Addiction

The first topic raised by Mr. Trudel was the CTMC's position on addiction. Mr. LaRivière explained that the view of the CTMC was that addiction as an inappropriate word, and that persons who had smoked for a very long time were able to stop cold turkey, which is a negation of addiction.  He could not recall any point in time that the CTMC acknowledged that smoking was addictive.

That does not mean that Mr. LaRivière did not work on addiction issues, however. In the run-up to the Surgeon General's 1988 report on the topic, it was Mr. LaRivière's job to send out speaking lines to his tobacco company members  (Exhibit 487) and to help their funded scientist, Verner Knott, participate in ARISE, an international front group for addiction issues (Exhibit 489).

CTMC's youth prevention programs

One of the activities launched by the CTMC during Mr. LaRivière's time was retailer-directed activities at not selling cigarettes to young persons. Yesterday, the trial had learned that the CTMC did not think such programs were very effective, but in the lead up to the passage of Canada's first tobacco laws (C-51 and C-24) wanted to introduce them as a "symbolic" gesture that would give it some control and maybe forestall legislation. (Exhibit 479U).

When the program was set to launch in May of 1988 (Exhibit 497V), the program had settled on the age of 16. Given that Mr. LaRivière had clearly stated that smoking was an adult decision where the meaning of adult was 18 years old, Mr. Trudel wanted to know about this discrepancy.

JR Q. Were the programs and age limits initiated with the understanding to prevent youth smoking for people under the age of 16?
A. That is what I deduce from these statements.

PT Q. How can you reconcile that with the fact that smoking is an adult choice?

A. It was always my belief that adult and 18 went together.

PT Q. If you wanted to prevent youth smoking, wouldn’t you prevent those under the age of consent for informed decisions from smoking?

A. That would seem to be a reasonable statement, yes.

Health Warnings

Under pressure of federal action, and with complaints about the CTMC was reviewing new health warnings, Jacques LaRivière was at the centre of a discussion among tobacco companies about new health warnings. In 1985, he circulated some proposed new warnings and raised the "strategic and tactical" question: Is there agreement that the harshest warning is to be used on billboards, the second harshest in magazines, the third harshest in newspapers-and the mildest on P.O.S. material?

Mr. Trudel wanted to know why it was strategic or tactical to put the harshest warnings on billboards. The witness danced around the question, and Justice Riordan intervened to repeat the question.

Q. Why would the harshest be on billboards. 

A. I don’t recall what the reasoning was

Q. Wouldn’t it be to limit the impact?
Q. Limit the impact of the warnings! By using the harshest warnings on the largest medium!? Billboards are huge!

Q. Do you remember that the warnings on billboards were 4 inches high?

A. No I am not a marketing person

Mr. LaRivière was reminded of a memo he had circulated that contained health warnings in other countries  and asked whether he knew any of the health facts presented in those warnings to be true. No, he did not know that smokers were more likely to have ulcers. No, he did not know that smoking caused hardening of the arteries and coronary occlusion. No, he did not know that smoking while breast-feeding was recommended against. His 1985 memo (Exhibit 491) is a reminder of how far behind European countries Canada was at the time, and his testimony yesterday undermines the industry's suggestion that "everyone knew" the health effects.

Recruiting third parties: economic dependants

One of the CTMC's political and government relations activities was its parliamentary liaison program, the purpose of which, as Mr. LaRivière put it, was increasing knowledge of sitting MPs and MLAs of the tobacco operations in their ridings, highlighting the economic impact, etc.

Again, the industry worked to have its message delivered by third parties -- in this case the growers, factory workers, unions and other economic dependants. But for the industry's script to be delivered, it had to be written down. The script written for these messengers a clear synopsis of the industry's position on key issues. (Exhibit 490, 490A, 490B)

To this day, there is no scientifically-established proof of a causal relationship between some diseases and smoking. ...

Nothing so far proves that passive smoke is dangerous for the healthy non-smoker, although it may be annoying in a poorly-ventilated place.

The CTMC commissioned its own public opinion polls on government policy. One of these, reviewing public views in 1994 on a variety of policy issues was made public today this week. (Exhibits 495, 496, 479 L)

Recruiting third parties: the Smokers' Freedom Society

One of the first issues raised with the first witness in this trial (Mr. Descoteaux) concerned the origins of the Smokers' Freedom Society, and its independence from the industry.

The first president of the society, Mr. Michel Bédard, testified earlier that the idea of the project came from his discussions with Pierre Lemieux. Mr. Descoteaux also gave the impression that the society was at least somewhat spontaneous in its development. The distinction was particularly important in the role the society played in presenting an independent rebuttal to science (of addiction) and public policy (economic impact of smoking).

The evidence from today suggest that the whole project was dreamt up at the CTMC, and that Mr. Bédard was one among other candidates for the job. Minutes from CTMC public affairs meetings (Exhibit 479K, 479L, 479O, 479P)

Recruiting Third Parties: Advertisers

In the 1980s, with attitudes against tobacco promotions hardening, the CTMC worked to put up an advertising front against such measures. Their core message against ad bans had been presented in a brochure (Exhibit 497). But Jacques LaRiviere and Keith McKerracher (of the Institute of Canadian Advertisers) were dissatisfied. The style of intervention adopted thus far has been ineffective. It is repetitive (boring) and has no emotional appeal. (Exhibit 493).

McKerracher, who supported the tobacco industry's position vigorously during the 1980s, had a firm message for the CTMC if it cared whether advertising is banned. The tobacco industry had to demonstrate its "commitment and coordination" before the advertising industry would "invest time or money".

Eventually, a coalition was built with advertisers and the sponsored events. (Exhibit 498).

Preventing smoking bans in Quebec

The trial has mostly heard of attempts to forestall federal regulation, or relations between the tobacco companies and the federal government.  The careful watch on and effective lobbying of the Quebec government surfaced today.

In February 1981, the "first few meetings with Quebec civil servants" regarding Quebec's anti-tobacco policy were held. (Exhibit 505).  In a letter to Mr. LaRivière, Mr. Descoteaux discerns a fault line between the economic ministries and the social ministries -- he also finds hope in the decision of Minister Lise Payette to step down. She remains ultimately responsible for the progression of the anti-tobacco proposed policy towards cabinet approval, and her decision to quit politics appears certain to undermine her "weight" in Cabinet.

With a new minister on the file in June of 1981, Jacques LaRivière reports on attempts to get a meeting and that tobacco issues would not be considered that spring. (Exhibit 506). In June the next year, a meeting was held with the Minister of the Environment (Marcel Léger). The Minister had a bill in mind (on public smoking), but was also interested in non-legislated approaches, like a 'courtesy' campaign. (Exhibit 507).

The next year, a new Minister, seemed less of a threat.
Mr. Ouellette, a cigarette smoker, is affable and pragmatic. He made what was perhaps the most significant statement very early during the conversation when he said that «while the civil servants were very advanced in the drafting of a Bill, I have just begun the process of reflexion and consultation and we are still a long way from legislation.» (Exhibit 508).

Within a few months, the proposed bill on smoking bans was apparently dead. "It was reported that Environment Minister Ouellette indicated there is no plan to legislate this. It is not a priority for the Quebec government." (Exhibit 479G)

A rich documentary resource

The testimony of these CTMC officials is quite a rarity in Canadian public affairs. The CTMC had not been involved in either of the constitutional challenges against the federal tobacco laws, and therefore had not previously been exposed to document discovery or examination in court.

The extensive documents from the CTMC that have been produced in this trial provide a rich insight into how business corporations cooperate with each other with significant creativity in order to defeat regulations aimed protecting the public from the negative consequences of their enterprise.

On Thursday, the exhibit numbers hit the "500" mark, and a little cheer was heard in the court room.  "Let's go home!" someone (on the defence side) suggested. In fact, more than 800 exhibits have been entered to date. Lots of summer reading!

Next week, Mr. Lydon Barnes will testify. He was outside counsel to Imperial Tobacco at the time of document destruction.  Also scheduled to re-appear are Dr. Porter, Mr. Woods and, possibly, Jacques Rivière. 

Also next week is the return of blogger Michael DeRosenroll. Welcome back!


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 42 : Jacques LaRivière

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

The first time that the trial of the Quebec class actions against tobacco companies heard about Jacques LaRivière, it was from the former president of Imperial Tobacco Canada Ltd., Mr. Jean-Louis Mercier.

He was an amazing guy, Mr. Mercier said. It is rare in life that you meet a guy as bilingual as him. He was a guy from Manitoba with a French name, LaRivière, who had worked at both Radio-Canada and CBC - he worked in both languages. He was the spokesperson for the Canadian Tobacco Manufacturers' Council. It was his job to meet the media when there was a press meeting - all those sorts of things he handled.
(Unofficial translation)

Today, not quite two months later, it was Mr. LaRivière's turn to be questioned on the operations of the industry's trade association, the CTMC. He is the second witness from that organization to ever testify at trial (Bill Neville, the former president of the CTMC, had testified on June 6 and 7).

Mr. LaRiviere is one of the older generation of tobacco industry officials who have testified at this trial. More than 30 years ago, in 1979, he was assigned to the CTMC account when he was working for the Montreal public relations firm Public and Industrial Relations (PIR), but became an employee of the CTMC when it was transferred to Ottawa in 1984. He retired from the CTMC in 1994.

Jacques Lariviere explaining in 1985
that second hand smoke is a ventilation
issue, not a health hazard

Jacques LaRivière is too large a man to be described as healthy-looking, and he referred to hip problems when accepting the offer to sit while testifying. Nonetheless, there are many his age (78) who would envy his physical and mental state. He does not look so very different than he did when he appeared on CBC's The Journal more than 25 years ago.

Hearing him speak, it is not surprising that he is a former radio man. His voice remains robust, and unlike most witnesses he knows how to use a microphone. He uses his voice with deliberate expression - emphasizing words and putting a melodic flow to ideas he wants to emphasize. He knows how to tell a joke to break the tension and attempted to do so a few times in the morning. His voice was also expressive in an unintended way - audible sighs and long pauses suggested that over the day he found the experience of testifying increasingly taxing.

I have reached the age when memory is the faculty that forgets, he said soon after Philippe Trudel began asking about the dates Mr. LaRiviere began to work for the CTMC. Other than dates, however, he expressed few reservations about his power of recall and seemed certain of either knowing or not knowing the answer to a question, remembering or not remembering a document placed before him.

His work at CTMC was primarily communications, he explained. The job of a communications officer requires a lot of repetition, and many of the answers that Mr. LaRivière provided had the air of long-practice.  What was the  mandate of the CTMC? To protect the rights of the manufacturing sector of the industry and to communicate to interested parties the purposes of the council.  What were those rights? To produce a legal product which was also legal to sell and legal to use.

The CTMC denied that smoking caused illness and disease

One of the most frequently asked questions at the time Mr. LaRivière was managing communications for the CTMC was whether the tobacco industry accepted that cigarettes caused disease. Today, Mr. Trudel asked this question in several ways. After a few false starts, this witness gave a clear answer that the industry had denied causality at the time of his employment.

Q. Does tobacco cause death or disease?
A. There are circumstances, I supposed – yes – there is an acknowledgement that there is a risk involved and that risk can lead to disease.

Q. Was tobacco consumption a cause of illness and diseases? Did the CTMC acknowledge that when you were there?
A. I do not believe that they did.

Q. Did they deny it?
A. I remember a denial of the causal relationship at one point in time, yes.

Q. ...All of the time you were there?
A. That may be accurate.

Q. Do you know the reason for the denial?
A. The example that comes to mind is the statement that smoking causes cancer.  If that is the case why is it that people that smoke all their lives do not get cancer.

Q. This is the logic behind the position?
A. No... the statement that was made was an absolute. "Smoking causes cancer."

Q. If the statement is "smoking causes cancer in certain persons" – you would agree with that?
A. I don’t have the medical background.

Q. What about the CTMC? Was the CTMC in agreement with the statement at the time you were there?
A. I do not recall that.. (he shakes his head)  No.

The unread voluntary code

The trial has heard repeatedly of the voluntary marketing code (1984 version, Exhibit 20004) that the industry first adopted in the early 1970s in part to head off regulation by government. One of the most surprising bits of Mr. LaRivière's testimony today was that he had not read the document, and was not familiar with the versions that were renegotiated during his time at the CTMC.  Repeated questions on the topic by Mr. Trudel - separated by some hours and a break -- suggest that this admission was not a slip of the tongue or a misunderstanding. (The code is 19 short paragraphs and 3 pages long.)

CTMC Voluntary Code - 1984

Mr. LaRivière's responsibilities with the code were focused on section 11 (regarding how close to a school a billboards near schools - he said his interpretation as that the prohibition extended to traditional billboard and also to exterior signs on stores). How he could have avoided being intimately acquainted with this important short document remains a mystery.

From the documents produced today, it would appear that on more than one occasion it was up to Mr. LaRivière to pass complaints about violations of the code to the companies responsible. A series of complaints were filed by the Non Smokers Rights Association (Exhibit 480, 480A and 480B, not yet available). As with other complaints (Exhibit 482, not yet availble), the CTMC was powerless, it appears, to make sure the code was enforced.

Q. Am I right to say that the CTMC was powerless with respect to the voluntary code? 
A. It was adopted a long time ago and it dealt with complaints of one manufacturer to another.

Q. You were receiving complaints from public and were passing them around, but had no authority over them?
A. That would be the appropriate word under the circumstances.

RJR/JTI Macdonald
1985 ad for
Tempo cigarettes 

Mr. Trudel wanted to know what would happen if all the members were violating the same rule, and there was no reason for any one company to complain against another? The question was considered too hypothetical, so he asked directly. Did everyone advertise to kids under 18? Mr. LaRivière answered emphatically. They did not!

As the front-line communicator for the CTMC in 1985, when complaints were piling up about RJR's ads for Tempo cigarettes, Mr. LaRivière's firm answer seemed more than a little defensive.

A warm body

To this observer, the hoops that must be run to have documents accepted as evidence seem on occasion to have perverse effects. One of those effects is that a witness must be on hand for some documents to become part of the trial record and evidence. Fortunately for history, Mr. LaRivière is still alive and well enough to come to the trial, which allowed a couple of dozen records of CTMC meetings to be made public.  These were entered as Exhibit 479, 479A, 479B, 479C, etc. An ordered list will be posted on this blog when the set is released.

"Incomplete" answers

When the court resumed after the lunch time break, Mr. LaRivière looked even more ill-at-ease.

Mr. Trudel asked him for the second time about measures he had taken to prepare for the testimony. In the morning he said he had read the documents that had been sent to him but that nothing [else] came to mind. 

This afternoon the question was more direct - did you meet with anyone? - and the answer was different.  I met [last night] with some of the lawyers who explained to me the format of the hearings.  Any conversations by telephone prior to that? Yes. When? A long pause before Mr. LaRivière answered Yesterday afternoon. They told me that some new documents would be introduced today, but they did not tell me what.

An hour or so later, Mr. Trudel returned to the issue of conversations with the industry's lawyers, asking whether the witness had spoken to Ms. Glendinning during the afternoon break.

Witness contact with defense lawyers has only infrequently been spoken of during this trial, and three references during one day suggested that something was up. Another sign of something out of the ordinary was the prolonged huddle of industry lawyers in the corridor during the afternoon break.

Whatever it was seemed to have broken the cease fire that had recently settled over the court. The hackles of plaintiff and defence lawyers were up. Sharp words were spoken and words were spoken sharply. For the first time, Justice Riordan asked the (typically very polite and measured) Mr. Trudel to calm down: Slow down. Roll back a bit and then go forward.

At the end of the day, Simon Potter (representing RBH but apparently speaking for the defence coalition) waited until Mr. LaRivière had left the room before asking guidance on how to return to question put to the witness for which the answer could be more complete.  We don’t want to sit on our knowledge but we want to do it without interfering with what goes on. 

The mystery may be resolved when the industry lawyers have an opportunity to put questions to Mr. LaRivière, which is expected to happen tomorrow.

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.