It's very easy when watching this long-running tobacco trial from a seat at the back of the courtroom to get caught up on the performance elements. Which lawyer can get their questions out cleanly, and which can't? Which lawyer can get to a surprising bit of evidence without telegraphing their intent? Which expert witness can take a verbal pummeling and which one is thin-skinned?
I have no experience in how important these things will be at the "end of the day" when Justice Riordan sits down to write his judgement, but at the end of this long day of testimony I left the courtroom struck by the very different skill levels of the two individuals who testified today.
The first - Health Canada's designated witness, Mr. Denis Choinière - distinguished himself by receiving high praise from Justice Riordan for his "herculean efforts," his patience and good humour. (I overheard lawyers using superlatives to describe Mr. Choinière's skills as a witness).
By the end of the afternoon, it felt like the herculean efforts and patience were on the part of those listening to Imperial Tobacco's expert in survey methodology, Ms. Claire Durand. She distinguished herself by being the first witness to repeatedly over-talk the judge and to be forcibly scolded into being silent.
The government shield
RBH has long signalled its view that the actions of the government should shield the company from any liability. In its "concise statement of legal and factual issues" tabled on the eve of the trial last year, it refers to the government more than thirty times, claiming that "RBH’s cigarettes are (and have always been) made, sold and advertised according to laws and policies set, encouraged and approved by the government."
(A more detailed summary of their position with respect to government actions was outlined in their "action in warranty" claim against the government, which was ultimately dismissed last November).
RBH lawyer Simon Potter spent the morning trying to get Mr. Choinière, who is the first witness from Health Canada, to agree with the company's interpretation of the documentary record of relations between the industry and government.
To do so, he brought out documents that he clearly felt substantiated the position of the company. Many of these pertained to the government's role in promoting the use of lower-tar and lower-nicotine brand cigarettes.
* Health Canada's efforts over about 15 years following 1968 and to get widespread diffusion of the results of tar and nicotine testing on available brands (Exhibit 20064.88, 30036),
* the establishment of a government research initiative to produce lower-tar blends of tobacco (Exhibit 30038),
* the recommendation to industry that tar levels in cigarettes be "gradually reduced" (Exhibit 50009B)
* its advice to the public as late as 2002 that lung cancer risks were reduced by smoking lower tar cigarettes (Exhibit 30037)
* its sustained pressure on the companies to lower their "sales weighted" emissions of tar, nicotine and carbon monoxide (Exhibit 30039, 30040, 30041, 30042, 30043)
* the willingness expressed by the company to cooperate with government (Exhibit 30044)
* the benefits identified by Health Canada researchers about light cigarettes. (Exhibit 30045)
Mr. Choinière spoke at length about the long and twisted evolution of the government's view on whether some cigarettes were less harmful or should be promoted as such. He emphasized that the "hopes" that drove the early publication of tar and nicotine levels in the late 1960s had completely faded by the mid 1980s, when the health ministry stopped promoting the comparison of cigarette blends in this way and spoke of the efforts beginning in 1999 to remove the term "light" or "mild" from cigarettes sold in Canada.
And as for the documents that exhibited a certain amount of what now could be charitably described as fuzzy thinking, Mr. Choinière was able to confirm that the real view of Health Canada was always much clearer than the specific documents suggested. Health Canada had taken corrective action to have the potentially misleading information removed from the web-site of its sister ministry, the Public Health Agency of Canada.(Exhibit 30037). His colleague's e-mail contained several mistakes (Exhibit 30045).
But who really calls the shots?
Mr. Potter closed his questions by trying to get Mr. Choinière to acknowledge that the views of Health Canada regulators were not always those of government -- and that "there were times when Health Canada had a view, but the government took another position."
As important as this issue is to RBH's defence, Mr. Choinière was saved having to comment on this. "We admit this," Mr. Lespérance interjected.
Mr. Choinière was free to go.
Working within policy constraints
Over the three days of his testimony, Mr. Choinière emphasized the limited choices that were available to departmental officials when there was no policy or legislative authority to take other actions. At first I had just heard this as an explanation of the real-life challenge of someone whose job it is to protect health with one hand tied behind their back.
By the end of the morning, however, I realized that Mr. Choinière's comments consistently reinforced the legal position of the government that it could not be held responsible for policy decisions, and that its execution of the policies had at all times been correct!
The Supreme Court, among others, has said the government is immune for its policy decisions on tobacco, although it might not be immune for how these were put in place. In making these distinctions, Mr. Choinière showed that he was not only able to successfully walk through the documentary mine field laid out for him by Mr. Potter, he could also lay down some barbed wire to protect his testimony from being used to support other claims against the government. A good witness indeed!
An unbalanced story
Justice Riordan is almost unique among Canadian jurists to decide to include the federal government in the tobacco lawsuits, as shown by his decision of February 2012 released after the Supreme Court had made a contrary decision. (Whether he decided to keep them in the ring for real legal concerns, or just to avoid a further delay in the trial has been a source of speculation).
Today, the judge showed a great interest in the events described by Mr. Choinière and he clearly believed this witness. This was a teachable moment and a trusted teacher for the Court to learn more of the missing story of Health Canada's relationship to tobacco use in Quebec.
But the moment passed without further instruction.
The plaintiffs decided to ask not a single question of Mr. Choinière. Nor were there any questions from government lawyers. (Months ago, the federal government decided not to participate further in this trial.)
The absence of the federal government's counsel at earlier stages of this trial, Mr. Maurice Regnier, was much missed. With his ability to quickly correct the record, I like to think he would not have allowed the documents presented by Mr. Potter to go unrebutted.
(Exhibit 30044r was introduced as an example of RBH's willingness to cooperate on restrictions on the use of "light" on cigarettes. Absent from this court record is the threat in the same year by its owners, Philip Morris International, to claim damages under NAFTA for the loss of their property rights if this happened).
Mme Durand's second attempt
The afternoon session was supposed to start with a resumption of Bruce Johnston's cross examination of this Imperial Tobacco expert witness. But before that happened, Ms. Durand (who seemed to have an idiosyncratic view of how court procedures work), asked to provide more information on a topic she had been asked about yesterday.
It concerned the issue of whether a question about how many cigarettes of your own brand can you can safely smoke was a way to assess knowledge or opinions. She allowed today that if the question were prefaced by a statement like "According to Health Canada," then it could be considered to test knowledge, but that otherwise it tested perceptions.
She was not the only one to pick up a thread from yesterday -- Justice Riordan also returned to his obvious difficulty in understanding why the analysis prepared by Mr. Christian Bourque (Exhibit 1380, and the subject of Ms. Durand's critique) was not valid.
"If you want to know what was in the head of the companies ... they get the information, they read it, and not being specialists, they use this information to get an impression of public knowledge." He mused out loud that "for 20 years, twice a year, they asked the same question" before signalling "Well, that's a question for me to work out."
Bruce Johnston might have considered that he needed to get nothing more on the record at that point, but he nonetheless persevered in trying to get Ms. Durand to agree to the logic behind the insights that Mr. Bourque had taken from the industry's survey, and to provide more information on her own work.
This witness' was clearly reluctant to agree with any of the questions put to her by her client's opponents. The result was some seemingly contradictory statements. She used a chart produced by Mr. Bourque to counter the suggestion from Mr. Johnston that the companies had surveyed attitudes that might influence smoking rates. The chart showed that there was no such relationship, she said -- seemingly forgetting that yesterday she said that the data underlying the chart was so unreliable that no inferences could be made from it.
Her testimony came at the end of a long week, and it was tiresome to listen to. Justice Riordan began to prop his head in his hands, and showed his irritation with her answers by directing the "next question" to be asked.
The only thing that livened up the afternoon was her inability to understand that such a direction was a cue for her to be quiet. "Madam. Madam!! MADAM!" The exceedingly polite judge was forced to raise his voice over her refusal to stop talking.
Two long hours later, the day was over.
Next week looks like an exciting one. The former Minister of Health, Marc Lalonde will appear and so too might David Flaherty. The industry is expected to produce its revised calendar for the year ahead by Wednesday. The companies will respond to a proposal to reduce the scope of the class of addicted smokers by Monday.
Showing posts with label Choinière. Show all posts
Showing posts with label Choinière. Show all posts
Thursday, 13 June 2013
Tuesday, 11 June 2013
Day 151: The Feds on the Hot Seat
If you just casually wandered into the elegant modern courtroom where the Montreal Tobacco trials are underway, you might be forgiven for thinking that today it was Health Canada that was on trial and not Canada's three large tobacco companies.
For the second of two long and grueling days, Denis Choinière, a senior official in Health Canada's tobacco control program, faced a barrage of questions about 50 years of government policy.
It was not only the questions that were put to this public servant that made it seem like the government was the one up on charges. His replies were highly defensive and, more often than not, seemed aimed at avoiding the answers the lawyers were seeking rather than giving the court a frank explanation of the evolution of government policy during decades of frustration with a legendarily difficult commercial sector.
Throughout the two days, a solitary government lawyer, Mr. Jean-Robert Noiseux, sat at the back of the room. Although he was prepared to intervene from behind the bar (he stood up a couple of times, prepared to express concerns), he was not in legal robes and not with any formal standing that would allow him to cross-examine or otherwise counter, clarify or contextualize Mr. Choinière's comments or the hundreds of documents tabled over the two days.
Nor were the plaintiffs able to block most of the questions put to this witness - no matter how distant they seemed from the topic at hand or the focus of his work.
Mr. Choinière was, for the most part, on his own. If ever there were a case for hardship pay for health officials, this was it!
Sauce for the Goose, but not for the Gander
This is the first real "fact witness" for the tobacco companies (Peter Gage, the nonogenerian witness who testified from Victoria last summer for JTI-Macdonald, was in a category of his own).
And so it is during Mr. Choinière's appearance that all the legal teams are getting a feel of the dynamics now that the tables have turned and it is the companies that are putting their evidence on the record.
It's a whole other ball game!
Some changes reflect the different styles of play and the need to keep some appearance of consistency. The companies, for example, objected to almost every document being put on the record and are appealing decisions that allowed it to happen. The plaintiffs hardly object to any. The companies' objections to the plaintiff's questions were consistent, numerous and often suggested answers to the witness. The plaintiffs have - so far at least - made minimal interventions during testimony.
Most other changes, to my eyes at least, are the result of Justice Riordan using his discretion to impose fewer constraints on the tobacco company lawyers than he did on the plaintiffs. Given that it is the companies and not the plaintiffs that go running to the Court of Appeal, it is not surprising that erring on the side of caution for this judge in this trial means giving the industry the benefit of any discretionary doubt.
The irony of some changes is not lost on anyone who has been sitting in the court for the last 15 months. Parliamentary reports for which JTI-lawyers claimed parliamentary privilege last November 27th were this week introduced by - you guessed it - JTI lawyers. And the same companies that (successfully) objected to questions about second-hand smoke and even roll-your own tobacco as being irrelevant to this file were today asking questions about alcohol and obesity. (The plaintiffs objections to these questions were over-ruled.)
A long leash and a wide path
Both Doug Mitchell (who asked questions in the morning) and Simon Potter (who took over in the afternoon) took advantage of the long leash permitted them to take Mr. Choinière all over the federal government map.
He was asked about issues that took place long before his time on the file (i.e. events in the 1960s and 1970s), about conclusions in disciplines outside his area of experience or training (i.e. in social marketing and smoker behaviour), and even on policies outside his department's mandate (i.e. tax and agricultural policy).
Some snippets from the day
The Voluntary Code: Mr. Mitchell returned to the issue of collaboration between government and the industry. He asked Mr. Choinière to agree that former Ministers of Health had spoken positively about the industry and its voluntary code.
Had not Minister Bégin (Exhibit 40167.1R) spoken to a global audience about the the "unique features" of the "voluntary agreements between industry and the federal government"? And did not Minister Epp (Exhibit 40085) praise the company for its "past practice" of vigorous adherence to the voluntary code?
Not necessarily, replied Mr. Choinière. It wasn't at all clear that Mme Bégin was referring to the CTMC marketing code (which he described as an agreement among the industry, and not with government). And he explained that the nice coda to Mr. Epp's letter didn't mean much, as it was was the sort of polite finish that was routinely put on such correspondence.
Advertising Bans: The first federal law banning tobacco advertising cleared Parliament 25 years ago this month -- a full 25 years after the first recognition by a Minister of Health that smoking caused disease.
Mr. Mitchell spent some time exploring with Mr. Choinière documents that were written in the year leading up to the policy change, encouraging him to agree that the ban was introduced before there was a scientific foundation to do so.
One of these papers was a July 1985 legal opinion provided to Health Canada (Exhibit 40179) by its legal advisers which suggested that the health department had said such a ban would be "purely symbolic" and that "There is no evidence indicating that a ban on tobacco advertising reduces smoking."
There were also two versions of a 1986 briefing note for Question Period, (Exhibit 40183 and 40184) which advised the minster that "no conclusive" and "no compelling" evidence existed that such bans resulted in reduced smoking rates.
These briefing notes were drafted by Neil Collishaw, Mr. Mitchell pointed out. Was he not someone whose commitment to reduce tobacco use was not in doubt? Did that not mean that he believed that the evidence was not solid?
Mr. Choinière did not accept the premise that the briefing note was a sincere reflection of knowledge at the time or the opinion of the author. Mr. Collishaw, he noted "was a public servant as I am and a good public servant follows instructions." He explained that a public servant is subject to many influences when they prepare such notes.
The defence has promoted the view that the notion of addiction to tobacco is disproved by the fact that smokers can quit and usually do so without medical intervention.
Mr. Mitchell suggested this view was supported by a Statistics Canada report (Exhibit 40225) which noted very few former smokers used "nicotine patches or chewing gum".
This report was based on 1996 data, and would have reflected the fact that most of those who had quit at that time had done so before any such products were on the market. Even in 1996 the patch was still a prescription medication and other medications - like Zyban and Champix - had not yet been introduced to the market.
Another old (1977) report from Health Canada (Exhibit 40198) found that the total number of years of life lost to alcohol was greater than those lost to tobacco use.
Only in court does science stand still! No references were made to more current estimates.
Consumer protection
For the second half of the day, Mr. Potter took the reins.
Despite his forceful repetition of questions, he was unable to steer this witness into agreeing to RBH's position that there has been a long societal consensus to permit the sale of tobacco. (As the afternoon wore on, RBH's lawyer looked increasingly vexed as the witness refused to yield to his leading questions or pushy tone.)
Mr. Potter drew attention to the recently drafted Consumer Products Safety Act. "Tobacco was recognized as a danger for health - yet there was a decision to exclude tobacco from this law!" He asked Mr. Choinière to confirm that while this law gave the Minister the power to recall harmful products, there had never been a recall or injunction against the sale of tobacco products.
No matter how many times the question was put, Mr. Choinière did not take the bait.
He patiently explained that the ignition propensity aspects of tobacco products were covered by this law as a consequence of the way those provisions came through parliament, and that other than this aspect, there was no statutory authority to use this act to recall tobacco products or put an injunction against them.
Long range and taxing questions
A document given much mileage today is a staff paper on "Smoking and Health in Canada" prepared 35 years ago by the departmental internal think tank on long range health planning. (Exhibit 40221).
Mr. Potter used this paper as a springboard to question Mr. Choinière about the government's view of several aspects of tobacco use, including its social acceptability, the health benefits of filters and lower tar cigarettes, and its regulation and taxation of these products.
Mr. Potter focused at length on tobacco taxes - which he described as the "government's take". ("One hundred percent of the retail price is government taxes!" he repeated to the confusion of those, including Justice Riordan, who calculate proportions more conventionally)
Had not health and finance officials (Exhibit 30034) once explained that these taxes were imposed to recover the "substantial costs on the society which are external to the market system." Mr. Choinière did not agree, saying that in recent decades the reason for high tobacco taxes was to reduce tobacco use.
Philippe Trudel objected - again unsuccessfully - to the questions going so far away from the case at hand. In responding to the objection, Mr. Potter revealed that he saw the high excise taxes on tobacco products as a "societal take" and signalled that later in the trial he would argue that because of these taxes "the industry has already paid punitive damages."
Funny that - I would have thought it was the smokers represented on the other side of the courtroom who paid those taxes!
Shut out by Agriculture
For a short period in the 1970s, Health Canada and Agriculture Canada worked on a "less hazardous" smoking or tobacco program. Flowing from that initiative was the development of tobacco cultivars suitable for Ontario farms.
Mr. Choinière's explanation of these events gave a different view than that in the papers filed by the companies in their defence. While there had been meetings between the two departments, he reported, he was aware of no documents that showed that Health Canada officials had "any impact" on the research agenda of the Agriculture department.
A diligent witness
Justice Riordan always thanks witnesses at the end of a stretch -- but his expressions of appreciation to Mr. Choinière were more fulsome than usual. The time and effort in preparation that were invested by this "most diligent witness" were clearly much appreciated.
On Thursday, Mr. Choinière will return for the last day. On Wednesday, Ms. Claire Durand, an expert witness for Imperial Tobacco, will testify.
For the second of two long and grueling days, Denis Choinière, a senior official in Health Canada's tobacco control program, faced a barrage of questions about 50 years of government policy.
It was not only the questions that were put to this public servant that made it seem like the government was the one up on charges. His replies were highly defensive and, more often than not, seemed aimed at avoiding the answers the lawyers were seeking rather than giving the court a frank explanation of the evolution of government policy during decades of frustration with a legendarily difficult commercial sector.
Throughout the two days, a solitary government lawyer, Mr. Jean-Robert Noiseux, sat at the back of the room. Although he was prepared to intervene from behind the bar (he stood up a couple of times, prepared to express concerns), he was not in legal robes and not with any formal standing that would allow him to cross-examine or otherwise counter, clarify or contextualize Mr. Choinière's comments or the hundreds of documents tabled over the two days.
Nor were the plaintiffs able to block most of the questions put to this witness - no matter how distant they seemed from the topic at hand or the focus of his work.
Mr. Choinière was, for the most part, on his own. If ever there were a case for hardship pay for health officials, this was it!
Sauce for the Goose, but not for the Gander
This is the first real "fact witness" for the tobacco companies (Peter Gage, the nonogenerian witness who testified from Victoria last summer for JTI-Macdonald, was in a category of his own).
And so it is during Mr. Choinière's appearance that all the legal teams are getting a feel of the dynamics now that the tables have turned and it is the companies that are putting their evidence on the record.
It's a whole other ball game!
Some changes reflect the different styles of play and the need to keep some appearance of consistency. The companies, for example, objected to almost every document being put on the record and are appealing decisions that allowed it to happen. The plaintiffs hardly object to any. The companies' objections to the plaintiff's questions were consistent, numerous and often suggested answers to the witness. The plaintiffs have - so far at least - made minimal interventions during testimony.
Most other changes, to my eyes at least, are the result of Justice Riordan using his discretion to impose fewer constraints on the tobacco company lawyers than he did on the plaintiffs. Given that it is the companies and not the plaintiffs that go running to the Court of Appeal, it is not surprising that erring on the side of caution for this judge in this trial means giving the industry the benefit of any discretionary doubt.
The irony of some changes is not lost on anyone who has been sitting in the court for the last 15 months. Parliamentary reports for which JTI-lawyers claimed parliamentary privilege last November 27th were this week introduced by - you guessed it - JTI lawyers. And the same companies that (successfully) objected to questions about second-hand smoke and even roll-your own tobacco as being irrelevant to this file were today asking questions about alcohol and obesity. (The plaintiffs objections to these questions were over-ruled.)
A long leash and a wide path
Both Doug Mitchell (who asked questions in the morning) and Simon Potter (who took over in the afternoon) took advantage of the long leash permitted them to take Mr. Choinière all over the federal government map.
He was asked about issues that took place long before his time on the file (i.e. events in the 1960s and 1970s), about conclusions in disciplines outside his area of experience or training (i.e. in social marketing and smoker behaviour), and even on policies outside his department's mandate (i.e. tax and agricultural policy).
Some snippets from the day
The Voluntary Code: Mr. Mitchell returned to the issue of collaboration between government and the industry. He asked Mr. Choinière to agree that former Ministers of Health had spoken positively about the industry and its voluntary code.
Had not Minister Bégin (Exhibit 40167.1R) spoken to a global audience about the the "unique features" of the "voluntary agreements between industry and the federal government"? And did not Minister Epp (Exhibit 40085) praise the company for its "past practice" of vigorous adherence to the voluntary code?
Not necessarily, replied Mr. Choinière. It wasn't at all clear that Mme Bégin was referring to the CTMC marketing code (which he described as an agreement among the industry, and not with government). And he explained that the nice coda to Mr. Epp's letter didn't mean much, as it was was the sort of polite finish that was routinely put on such correspondence.
Advertising Bans: The first federal law banning tobacco advertising cleared Parliament 25 years ago this month -- a full 25 years after the first recognition by a Minister of Health that smoking caused disease.
Mr. Mitchell spent some time exploring with Mr. Choinière documents that were written in the year leading up to the policy change, encouraging him to agree that the ban was introduced before there was a scientific foundation to do so.
One of these papers was a July 1985 legal opinion provided to Health Canada (Exhibit 40179) by its legal advisers which suggested that the health department had said such a ban would be "purely symbolic" and that "There is no evidence indicating that a ban on tobacco advertising reduces smoking."
There were also two versions of a 1986 briefing note for Question Period, (Exhibit 40183 and 40184) which advised the minster that "no conclusive" and "no compelling" evidence existed that such bans resulted in reduced smoking rates.
These briefing notes were drafted by Neil Collishaw, Mr. Mitchell pointed out. Was he not someone whose commitment to reduce tobacco use was not in doubt? Did that not mean that he believed that the evidence was not solid?
Mr. Choinière did not accept the premise that the briefing note was a sincere reflection of knowledge at the time or the opinion of the author. Mr. Collishaw, he noted "was a public servant as I am and a good public servant follows instructions." He explained that a public servant is subject to many influences when they prepare such notes.
[My colleague, Neil Collishaw, is now permitted to attend the trial. From his seat at the rear of the plaintiff's quarters, he was on the receiving end of a few call-outs today.]
Fossilized science: Mr. Choinière was not able to prevent Mr. Mitchell from presenting long-outdated conclusions of government staff nor from doing so as if these old reports had current meaning.
The defence has promoted the view that the notion of addiction to tobacco is disproved by the fact that smokers can quit and usually do so without medical intervention.
Mr. Mitchell suggested this view was supported by a Statistics Canada report (Exhibit 40225) which noted very few former smokers used "nicotine patches or chewing gum". This report was based on 1996 data, and would have reflected the fact that most of those who had quit at that time had done so before any such products were on the market. Even in 1996 the patch was still a prescription medication and other medications - like Zyban and Champix - had not yet been introduced to the market.
Another old (1977) report from Health Canada (Exhibit 40198) found that the total number of years of life lost to alcohol was greater than those lost to tobacco use.
Only in court does science stand still! No references were made to more current estimates.
Consumer protection
For the second half of the day, Mr. Potter took the reins.
Despite his forceful repetition of questions, he was unable to steer this witness into agreeing to RBH's position that there has been a long societal consensus to permit the sale of tobacco. (As the afternoon wore on, RBH's lawyer looked increasingly vexed as the witness refused to yield to his leading questions or pushy tone.)
Mr. Potter drew attention to the recently drafted Consumer Products Safety Act. "Tobacco was recognized as a danger for health - yet there was a decision to exclude tobacco from this law!" He asked Mr. Choinière to confirm that while this law gave the Minister the power to recall harmful products, there had never been a recall or injunction against the sale of tobacco products.
No matter how many times the question was put, Mr. Choinière did not take the bait.
He patiently explained that the ignition propensity aspects of tobacco products were covered by this law as a consequence of the way those provisions came through parliament, and that other than this aspect, there was no statutory authority to use this act to recall tobacco products or put an injunction against them.
Long range and taxing questions
A document given much mileage today is a staff paper on "Smoking and Health in Canada" prepared 35 years ago by the departmental internal think tank on long range health planning. (Exhibit 40221).
Mr. Potter used this paper as a springboard to question Mr. Choinière about the government's view of several aspects of tobacco use, including its social acceptability, the health benefits of filters and lower tar cigarettes, and its regulation and taxation of these products.
Mr. Potter focused at length on tobacco taxes - which he described as the "government's take". ("One hundred percent of the retail price is government taxes!" he repeated to the confusion of those, including Justice Riordan, who calculate proportions more conventionally)
Had not health and finance officials (Exhibit 30034) once explained that these taxes were imposed to recover the "substantial costs on the society which are external to the market system." Mr. Choinière did not agree, saying that in recent decades the reason for high tobacco taxes was to reduce tobacco use.
Philippe Trudel objected - again unsuccessfully - to the questions going so far away from the case at hand. In responding to the objection, Mr. Potter revealed that he saw the high excise taxes on tobacco products as a "societal take" and signalled that later in the trial he would argue that because of these taxes "the industry has already paid punitive damages."
Funny that - I would have thought it was the smokers represented on the other side of the courtroom who paid those taxes!
Shut out by Agriculture
For a short period in the 1970s, Health Canada and Agriculture Canada worked on a "less hazardous" smoking or tobacco program. Flowing from that initiative was the development of tobacco cultivars suitable for Ontario farms.
Mr. Choinière's explanation of these events gave a different view than that in the papers filed by the companies in their defence. While there had been meetings between the two departments, he reported, he was aware of no documents that showed that Health Canada officials had "any impact" on the research agenda of the Agriculture department.
A diligent witness
Justice Riordan always thanks witnesses at the end of a stretch -- but his expressions of appreciation to Mr. Choinière were more fulsome than usual. The time and effort in preparation that were invested by this "most diligent witness" were clearly much appreciated.
On Thursday, Mr. Choinière will return for the last day. On Wednesday, Ms. Claire Durand, an expert witness for Imperial Tobacco, will testify.
Monday, 10 June 2013
Day 150: The federal story begins to be told
There are only two weeks of hearings left at the Montreal tobacco trials before a long summer break. For each of these weeks, the tobacco companies have scheduled a witness through whom they will introduce a new story line to the trial -- the decades' long saga of Health Canada's management of the tobacco file.
The first such witness was sworn in shortly after 9:30 this morning. His name is Denis Choinière, and his position at Health Canada is - take a deep breath because it is a long title - Director of the Tobacco Products Regulatory Office of the Controlled Substances and Tobacco Directorate of the Healthy Environments and Consumer Safety Branch.
The affable Mr. Choinière is one of the world's most experienced and well-respected tobacco regulators. In addition to his work in Ottawa, he is a member of the management committee (the bureau) of the global tobacco treaty, the Framework Convention on Tobacco Control. He has been a central figure in the development of some of Canada's pioneering tobacco regulations -- such as the first picture warnings, the first requirements for detailed reporting of toxic constituents, the first change to the ISO measurement standard, and the first national requirements for cigarettes to be less likely to cause fires.
I think it must have been Denis Choinière's almost legendary ability to provide a diplomatic non-answer to a direct question that led to him being assigned the unenviable task of acting as the designated witness for Health Canada during the many years it was caught up in this court case. (The Quebec Court of Appeal released it last November 14th).
In that role, if I heard correctly today, he spent some 20 days being "deposed" (questioned) by tobacco industry lawyers and many more weeks or months preparing for the case. He read through many of the hundreds of thousands of government documents gathered and provided to the industry's' legal teams.
His immersion in these historic records may have made him a marked man for this trial, even after Health Canada was no longer officially a party. After having his study of Health Canada's tobacco history exposed to the companies' lawyers, this was a man who could not under oath say that he "did not know" what happened before he arrived at the department.
And, on the same day that the companies were at the Court of Appeal challenging the use of "Article 2870" to convert documents into evidence (see below), they may not have wanted to make it too obvious that the are in the same pickle as the plaintiffs -- too many documents with too few living witnesses.
Mr. Choinière's willingness to talk about documents and the plaintiff's strategic decision to not raise objections allowed them - at least today - to gloss over this point. At the beginning of the day, however, Mr. Mitchell gave notice that the companies were working on their own approach for this problem, which they would share at the end of the summer.
The federal role
The Appeal Court discharge notwithstanding, the federal government has retained a presence in this trial and remains a very visible part of the industry's defence.
As Justice Riordan explained it in his ruling last month, "Although the Companies' action in warranty has now been dismissed, the Court recognizes that the activities of Health and Agriculture Canada in the areas, inter alia, of advertising restrictions, notices to the public, light and mild cigarettes and new tobacco strains have pertinence to at least the question of punitive damages."
Only a few weeks ago, the companies stressed the importance they put on the federal role by scheduling 70 days of testimony from current and former federal employees. We don't yet know how many will actually testify, however, as Justice Riordan has now given the companies until June 19th to provide the revised witness list for their now-limited trial period of 175 days.
The industry's task of shifting the focus to what the government did or did not do will be made easier by the fact that they were able to keep all of the government documents provided to them, and to use them in this case even though the government is no longer party to it.
This morning, a drop from that bucket of administrative and policy history was put on the trial record. In the blink of an eye, 160 of these records were entered as Exhibits 40066 to 40224. (The documents will likely be available on the plaintiff's web-site in the coming weeks)
A veterans' team
The industry's task is also made easier by the fact that their team includes lawyers who have spent years in court fighting Health Canada on the tobacco file and who have acquired a detailed knowledge of Health Canada's documentary records.
Two of these experienced legal hands are on the front bench this week -- JTI-Macdonald counsel Mr. Doug Mitchell and Ms. Catherine McKenzie.
Mr. Mitchell asked all the questions today. Although the questions were razor sharp, there was no sign of the 'tough-guy' interrogator that has occasionally surfaced with other witnesses.
The long view.
Mr. Mitchell chose to take a mostly chronological, if not historical, approach to the documents he showed Mr. Choinière. For the first half of the day he worked through the development of a programmatic response by the government to tobacco use:
* The 1908 passage of the Tobacco Restraint Act, but its eventual decline in enforcement "to the point where it is now generally recognized as unenforced.” (Exhibit 40221)
* The surprisingly frank 1946 publication by the department of a booklet on "Smoking" which warned that smoke "reaches the most vulnerable part of the human body, causing impairment of vital organs" and observing that despite knowledge of the health risks "some of the most informed as to the potentialities are its most willing addicts". (Exhibit 40104)
* Events in the 1950s, such as the federally funded "Veterans" study that helped establish the link between lung cancer and smoking and was cited in the 1964 Surgeon General's report.
* The build-up to the first statement by a Minister of Health about tobacco and health 50 years ago this month, the national gathering that took place later that year, and the launch of educational programs. (Exhibits 40116, 40119, 40123)
* The report of the Isabelle Committee in the late 1960s, and the actualization of many of its recommendations through voluntary agreements of the industry.
* An apparent change in focus in the 1980s, away from education and towards persuasion. Break-free! Young people were urged by pop-singer Luba to join a new generation of non-smokers.
Do the records tell the whole story?
Although Mr. Choinière had no personal experience with any of these events, he dutifully responded to questions based on the knowledge he had gleaned during his review of the governments record. His willingness to comment on events was in sharp contrast to the constrained testimony of the many industry witnesses who preceded him on the stand.
For the most part, Mr. Choinière did not challenge the history that was presented to the trial through the government records. But there were several occasions when he hesitated to confirm it.
In one instance, Mr. Mitchell showed him a departmental publication claiming that 90% of Canadians were aware of reports of health issues with smoking (Exhibit 40049) as well as a press release in which the Minister of Health was quoted saying "success has been achieved" in informing "all but a minority" of people about the risks of smoking.
Mr. Choinière declined Mr. Mitchell's repeated urging to say that success had been achieved - he seemed to put more weight behind an evaluation process than a minister's press release.
On another occasion he implied a view that the documentary record might not tell the whole story.
Mr. Mitchell asked whether he thought that Canada was a "world leader" in tobacco control. Mr. Choinière, whose work on the FCTC allows him to see who is leading and who is coasting, hesitated to answer, and scratched his head as he observed "You are asking me for my opinion." He redirected his thoughts and replied: "Health Canada says it is a world leader. If I base myself on [government] documents, yes."
Federal perspectives are not homogenous, Mr. Choinière suggested. He spoke of the diversity of views that exist among public servants, and of frequent debates. The documents might speak for themselves, but they may not tell the whole story.
Reasons or excuses ?
Perhaps the climax of the day's testimony was mid afternoon, when Doug Mitchell asked Mr. Choinière to comment on an e-mail he had written in 1999 to his then-supervisor. His unit was working on the first round of graphic health warnings, and he was resisting the suggestion to add a warning regarding "light" cigarettes.
In his memo (Exhibit 40224) he cast doubt on the idea that light cigarettes were no less harmful. "Do we know for sure that light cigarettes are not better? One monograph from the US reports that for some smokers, there could be a beneficial effect? On the other hand, another report suggests that they may be the cause for a switch in lung cancers to adenocarcinoma. What is our position? ... I think it would be premature to move on this at this time."
If Mr. Mitchell was looking for confirmation that in 1999 Health Canada was still reserving judgement on light cigarettes, Mr. Choinière refused to give it to him. He explained today that his real concern was the delay the addition of a new warning would cause to the others already in the works. "In 1999 we were at the end of putting our regulations on warnings," he explained "I think I did not want to bring in a new warning – I did not want it to slow us down.
Busting out at the seams
Spacious as it is, Room 1709 of the Palais de Justice can't contain all of the action in this trial. Today there was trial news from other venues.
Beginning: This weekend the plaintiffs have circulated a motion whose object was not revealed, but which seems to involve JTI-Macdonald in ways that makes their lawyers stand quickly to their feet and say "confidential!" "confidential!" Justice Riordan has asked the issue to be taken up with the Chief Justice. A tantalizing mystery!
Middle: This morning, the Court of Appeal heard arguments on whether or not to overturn Justice Riordan's first decisions using the provisions of Article 2870 to permit industry documents to become exhibits when appropriate witnesses are dead or unavailable. It reserved its decisions - but when the lawyers returned from the Court of Appeal to report to their colleagues, there were more smiles on the plaintiff's benches than on the industry side.
End: Last week, the Supreme Court of Canada denied leave to appeal of Justice Riordan's decision to allow David Flaherty's early consultations for the companies to be permitted. Mr. Flaherty is now cleared to return to answer questions that have been postponed for more than a year.
Tomorrow, Denis Choinière's testimony will continue. On Wednesday, Ms. Claire Durand (expert witness) will testify for one day. Mr. Choinière is expected to complete his testimony on Thursday.
Next week's witness will be former health minister, Marc Lalonde.
The first such witness was sworn in shortly after 9:30 this morning. His name is Denis Choinière, and his position at Health Canada is - take a deep breath because it is a long title - Director of the Tobacco Products Regulatory Office of the Controlled Substances and Tobacco Directorate of the Healthy Environments and Consumer Safety Branch.
The affable Mr. Choinière is one of the world's most experienced and well-respected tobacco regulators. In addition to his work in Ottawa, he is a member of the management committee (the bureau) of the global tobacco treaty, the Framework Convention on Tobacco Control. He has been a central figure in the development of some of Canada's pioneering tobacco regulations -- such as the first picture warnings, the first requirements for detailed reporting of toxic constituents, the first change to the ISO measurement standard, and the first national requirements for cigarettes to be less likely to cause fires.
Despite this record - and despite being one of the longest-serving federal workers on tobacco control - Mr. Choinière did not start working on tobacco issues until after these lawsuits were launched in 1998. That is to say, all of the events which are within the time frame of this trial predate his direct personal experience as a health regulator for tobacco.
The designated witness
Politicians may be elected because they know to say the right things, but public servants are more often selected because they know not to say the wrong things.
I think it must have been Denis Choinière's almost legendary ability to provide a diplomatic non-answer to a direct question that led to him being assigned the unenviable task of acting as the designated witness for Health Canada during the many years it was caught up in this court case. (The Quebec Court of Appeal released it last November 14th).
In that role, if I heard correctly today, he spent some 20 days being "deposed" (questioned) by tobacco industry lawyers and many more weeks or months preparing for the case. He read through many of the hundreds of thousands of government documents gathered and provided to the industry's' legal teams.
His immersion in these historic records may have made him a marked man for this trial, even after Health Canada was no longer officially a party. After having his study of Health Canada's tobacco history exposed to the companies' lawyers, this was a man who could not under oath say that he "did not know" what happened before he arrived at the department.
And, on the same day that the companies were at the Court of Appeal challenging the use of "Article 2870" to convert documents into evidence (see below), they may not have wanted to make it too obvious that the are in the same pickle as the plaintiffs -- too many documents with too few living witnesses.
Mr. Choinière's willingness to talk about documents and the plaintiff's strategic decision to not raise objections allowed them - at least today - to gloss over this point. At the beginning of the day, however, Mr. Mitchell gave notice that the companies were working on their own approach for this problem, which they would share at the end of the summer.
The federal role
The Appeal Court discharge notwithstanding, the federal government has retained a presence in this trial and remains a very visible part of the industry's defence.
As Justice Riordan explained it in his ruling last month, "Although the Companies' action in warranty has now been dismissed, the Court recognizes that the activities of Health and Agriculture Canada in the areas, inter alia, of advertising restrictions, notices to the public, light and mild cigarettes and new tobacco strains have pertinence to at least the question of punitive damages."
Only a few weeks ago, the companies stressed the importance they put on the federal role by scheduling 70 days of testimony from current and former federal employees. We don't yet know how many will actually testify, however, as Justice Riordan has now given the companies until June 19th to provide the revised witness list for their now-limited trial period of 175 days.
The industry's task of shifting the focus to what the government did or did not do will be made easier by the fact that they were able to keep all of the government documents provided to them, and to use them in this case even though the government is no longer party to it.
This morning, a drop from that bucket of administrative and policy history was put on the trial record. In the blink of an eye, 160 of these records were entered as Exhibits 40066 to 40224. (The documents will likely be available on the plaintiff's web-site in the coming weeks)
A veterans' team
The industry's task is also made easier by the fact that their team includes lawyers who have spent years in court fighting Health Canada on the tobacco file and who have acquired a detailed knowledge of Health Canada's documentary records.
Two of these experienced legal hands are on the front bench this week -- JTI-Macdonald counsel Mr. Doug Mitchell and Ms. Catherine McKenzie.
Mr. Mitchell asked all the questions today. Although the questions were razor sharp, there was no sign of the 'tough-guy' interrogator that has occasionally surfaced with other witnesses.
The long view.
* The 1908 passage of the Tobacco Restraint Act, but its eventual decline in enforcement "to the point where it is now generally recognized as unenforced.” (Exhibit 40221)
 |
| 1960s education |
* Events in the 1950s, such as the federally funded "Veterans" study that helped establish the link between lung cancer and smoking and was cited in the 1964 Surgeon General's report.
* The build-up to the first statement by a Minister of Health about tobacco and health 50 years ago this month, the national gathering that took place later that year, and the launch of educational programs. (Exhibits 40116, 40119, 40123)
* The report of the Isabelle Committee in the late 1960s, and the actualization of many of its recommendations through voluntary agreements of the industry.
* An apparent change in focus in the 1980s, away from education and towards persuasion. Break-free! Young people were urged by pop-singer Luba to join a new generation of non-smokers.
 |
| 1980s persuasion |
Although Mr. Choinière had no personal experience with any of these events, he dutifully responded to questions based on the knowledge he had gleaned during his review of the governments record. His willingness to comment on events was in sharp contrast to the constrained testimony of the many industry witnesses who preceded him on the stand.
For the most part, Mr. Choinière did not challenge the history that was presented to the trial through the government records. But there were several occasions when he hesitated to confirm it.
In one instance, Mr. Mitchell showed him a departmental publication claiming that 90% of Canadians were aware of reports of health issues with smoking (Exhibit 40049) as well as a press release in which the Minister of Health was quoted saying "success has been achieved" in informing "all but a minority" of people about the risks of smoking.
Mr. Choinière declined Mr. Mitchell's repeated urging to say that success had been achieved - he seemed to put more weight behind an evaluation process than a minister's press release.
On another occasion he implied a view that the documentary record might not tell the whole story.
Mr. Mitchell asked whether he thought that Canada was a "world leader" in tobacco control. Mr. Choinière, whose work on the FCTC allows him to see who is leading and who is coasting, hesitated to answer, and scratched his head as he observed "You are asking me for my opinion." He redirected his thoughts and replied: "Health Canada says it is a world leader. If I base myself on [government] documents, yes."
Federal perspectives are not homogenous, Mr. Choinière suggested. He spoke of the diversity of views that exist among public servants, and of frequent debates. The documents might speak for themselves, but they may not tell the whole story.
Reasons or excuses ?
Perhaps the climax of the day's testimony was mid afternoon, when Doug Mitchell asked Mr. Choinière to comment on an e-mail he had written in 1999 to his then-supervisor. His unit was working on the first round of graphic health warnings, and he was resisting the suggestion to add a warning regarding "light" cigarettes.
In his memo (Exhibit 40224) he cast doubt on the idea that light cigarettes were no less harmful. "Do we know for sure that light cigarettes are not better? One monograph from the US reports that for some smokers, there could be a beneficial effect? On the other hand, another report suggests that they may be the cause for a switch in lung cancers to adenocarcinoma. What is our position? ... I think it would be premature to move on this at this time."
If Mr. Mitchell was looking for confirmation that in 1999 Health Canada was still reserving judgement on light cigarettes, Mr. Choinière refused to give it to him. He explained today that his real concern was the delay the addition of a new warning would cause to the others already in the works. "In 1999 we were at the end of putting our regulations on warnings," he explained "I think I did not want to bring in a new warning – I did not want it to slow us down.
Busting out at the seams
Spacious as it is, Room 1709 of the Palais de Justice can't contain all of the action in this trial. Today there was trial news from other venues.
Beginning: This weekend the plaintiffs have circulated a motion whose object was not revealed, but which seems to involve JTI-Macdonald in ways that makes their lawyers stand quickly to their feet and say "confidential!" "confidential!" Justice Riordan has asked the issue to be taken up with the Chief Justice. A tantalizing mystery!
Middle: This morning, the Court of Appeal heard arguments on whether or not to overturn Justice Riordan's first decisions using the provisions of Article 2870 to permit industry documents to become exhibits when appropriate witnesses are dead or unavailable. It reserved its decisions - but when the lawyers returned from the Court of Appeal to report to their colleagues, there were more smiles on the plaintiff's benches than on the industry side.
End: Last week, the Supreme Court of Canada denied leave to appeal of Justice Riordan's decision to allow David Flaherty's early consultations for the companies to be permitted. Mr. Flaherty is now cleared to return to answer questions that have been postponed for more than a year.
Tomorrow, Denis Choinière's testimony will continue. On Wednesday, Ms. Claire Durand (expert witness) will testify for one day. Mr. Choinière is expected to complete his testimony on Thursday.
Next week's witness will be former health minister, Marc Lalonde.
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