Day 22 - Second verse, same as the first....

Today's hearing entertained two returning witnesses. In the morning Michel Descôteaux (spokesperson for Imperial Tobacco during the 1980s and 1990s) continued his testimony. In the afternoon Jean-Louis Mercier (president of Imperial Tobacco during the 1980s) returned to continue the testimony he started over April 18th and 19th.

Both men settled into a groove of short answers (often a simple "no," or "I don't remember") and offered few new insights into how the company managed its affairs during their time as senior managers.  The documents that were introduced during their testimony, however, shed more light into some of the "sub-plots" of the story of Big Tobacco in Canada.

The many sides of Michel Descôteaux

Yesterday, Mr. André Lespérance had indicated that there were a number of documents he wished to enter through Mr.  Descôteaux , and this process consumed much of the morning session.  While Mr. Descôteaux said little, the material tabled spoke volumes about the scope of his activities during his time at Imperial Tobacco.

Mr.  Descôteaux  as clairvoyant.  In 1986, he writes his boss, Mr. Mercier, to express concerns about the storm-clouds on the horizon.  "I am now convinced that within two or there years, a new crisis will emerge heading towards sweeping federal laws on tobacco." (Exhibit 236).

Mr.  Descôteaux as strategist: In 1995, he writes the president of the CTMC, Mr. Rob Parker, to give his take on the priority issues that the industry must fight back.  These are plain packaging, restrictions on sponsorship, litigation, smoking restrictions, restrictions on access to tobacco products, attacks on teh companeis, new tobacco legislation (especially fears for having tobacco included under the Hazardous Products Act), product and package modifications,  increased government spending on tobacco control and higher taxes.  (Exhibit 238).

Mr.  Descôteaux  as global team player.  In the summer of 1994, he and Roger Ackman joined a select group of BAT executives to reflect on "what needs to be done to cause consumers, employees, the public at large, the media, governments, investors etc to adopt a balanced view of tobacco products similar to that held towards other products and services which when used entail the voluntary acceptance of risk." (Exhibit 242).

Mr.  Descôteaux  as diagnostician. In 1981, Mr. Descôteaux reported on a special survey, noting
"the increased social unacceptability of smoking is now seen as a key factor in prompting Canadians to give up the smoking habit." (Exhibit 24A)

Mr.  Descôteaux  as sentry. In 1980, Mr.  Descôteaux sends the ninth of an apparently regular bulletin on developments across Canada with respect to tobacco regulation.  Events in Calgary, Regina, Thunder Bay, Toronto, and Charlottetown re reported -- as is the possibility that insurance companies might alter the premiums for non-smokers. (Exhibit 233)

Mr.  Descôteaux  as hall monitor. In May 1980, Mr.  Descôteaux  equivalent at IMASCO (Mr. Norm Dann) wrote to warn of a competitors advertisement, and to ask for intervention at the CTMC.  (Exhibit 243 and 243A).

Michel-
No doubt you are on to this. But in case not it is a violation of the Industry agreement to refrain from having health or health-implied messages in the body copy of advertisements. They must be desperate. I think the Council should take it up or there will be a gradual T&N Numbers war in ads and the industry's relations will suffer.
Norm Dann


During her brief cross-examination of Mr. Descôteaux, Ms. Deborah Glendinning (on behalf of Imperial Tobacco) returned to a few elements of his testimony over 8 previous trialdays. In response to her questions, Mr. Descôôteaux confirmed that he had no responsibilities for the design of products, the research that was conducted, the marketing policies or the policies with respect to document retention/destruction. He answered her questions about whether he felt he had ever misled smokers or the public with respect to health risks or other issues with a firm "No."  He was equally firm in his negative response about his view that the Smokers' Freedom Society had no real impact in improving the environment for smokers or opposing smoking bans.

As for the long "think piece" on which he was questioned in the early days of his testimony (Exhibit 11), he agreed to her suggestions that it had never been intended to be circulated outside of the company, that he didn't know whether any of the ideas had been acted on by Mr. Kalhok.  He volunteered that this essay was produced within a culture of open discussion  at Imperial. And the materials he had sent to Alcan to discourage their anti-smoking program?  Well, he wasn't sure that anything had gone beyond his contact, Jacques Gagnon, and thought that Alcan had not changed its policy in the end.

 One intriguing question put by Ms. Glendinning involved Imperial Tobacco's constitutional challenge of the 1988 Tobacco Products Control Act, which was the first federal law to authorize regulations on health warnings. She asked Mr. Descôteaux whether he recalled that health warnings were included in that challenge. He thought not.  Intriguing because it was only last week that Imperial Tobacco launched a new constitutional challenge against the revision of health warnings that was regulated this fall and is coming into force this spring. (Imperial Tobacco also unsuccessfully sought an injunction against the first regulatory requirement for graphic health warnings in 2000). Intriguing also because, although Imperial Tobacco had not included health warnings in its original claim against the legislation, the industry encouraged the Supreme Court to knock down the health warnings as a form of "forced speech" as they were not attributed to Health Canada.

On one of her last questions, concerning whether Imperial Tobacco had ever made health claims about its products, Ms. Glendinning introduced one version of the voluntary advertising code agreed to by the Canadian manufacturers through the CTMC (a type of industry organization that absolutely existed in other areas of commerce, he agreed). The introduction of this document prompted Mr. Johnston, after some objections and discussions, to ask his own questions on re-examination and to touch on the inconsistencies between statements that said Imperial Tobacco always complied with a  voluntary code that required that marketing not be to those under 18 and Mr. Descôteax's earlier statements that Imperial Tobacco used the legal age of smoking (16 years at that time) as a cut-off for marketing.

Jean-Louis Mercier's reprise.

When Mr. Mercier returned to the stand in the afternoon, Philippe Trudel picked up where the morning had left of with a discussion of the advertising code and Imperial Tobacco's adherence to its requirements to not market to people under 18, to exclude celebrity endorsements, and to limit advertising to brand preference and to ensure that advertising does not state or imply that smoking a particular brand is essential to romance, prominence, success or personal advancement. Mr. Mercier explained that festooning the uniform of racing heroes like Jacques Villeneuve did not constitute endorsements, nor did it market to youth and that lifestyle advertising was completely consistent with the voluntary code.

But for the most part, his answers were short non-answers.  What was "immediate vicinity" of a school in which space tobacco could not be advertised? Why say "don't inhale" in the voluntary health warning? Did he ever meet Mr. Bédard?  What was the (UK pro-smoking organization) FOREST?  I don't know. I can't say. Ask someone else.

Documents speak even when witnesses choose not to

Among the documents which prompted these laconic responses were further details about the origin of the Smokers Freedom Society and the question of whether its genesis was from within the tobacco industry or from the imagination of Mr. Lemieux and Mr. Bédard.

In the fall of 1985, the CTMC reported (Exhibit 248):
The smokers' rights group idea is still being pursued, following the two week visit of [UK-based pro-smoker spokesperson] Stephen Eyres to Canada last month. Eyres, by the way, found Canadians tame for the most part, and the non-argumentative approach of most of the journalists who interviewed him allowed him to get his points across.

In May 1986, the CTMC was discussing the name Smokers Freedom Society (Exhibit 249), In September 1986, the CTMC was recommending to its member companies to not make public the amount the Society received. (Exhibit 251).  In 1988, the CTMC task force on second hand smoke recommends a budget of $1.5 for the society, acknowledging that (Exhibit 252):
"[T]he SFS is essential. It constitutes a "morale" builder for those who enjoy smoking. It is a small voice that, in the middle of the thunderous cacophony of the antis' condemnations and pressure, maintains that it is o.k. to enjoy smoking, that smokers are not social lepers, that smokers do not kill innocent bystanders with their smoke, that they pay their way in terms of health costs, that they have rights too."

Will a 'safer' cigarette ever see the light of Day?.

Later in the afternoon, Mr. Trudel turned to the topic of "Project Day", and the attempts by Imperial Tobacco to persuade its principal (if indirect) shareholder to cooperate in a Fundamental Research program to try to develop a "safer" cigarette.

In the summer of 1986, Mr. Mercier accompanied his head of research (Patrick Dunn) and head of production (Mr. Cliff Warren) to a meeting at BAT's headquarters in Millbank to discuss ways (Exhibit 253)
"To work towards the discovery of a 'safe' cigarette, 'safe' in the eyes of those who say that the current cigarette is 'unsafe' .' Such an objective is, in ITL' s view, market oriented (in that it would expand the market) but is not marketing-oriented, i.e. concerned with short term targets."

As he had in his earlier testimony, Mr. Mercier insisted that there was no inconsistency in accepting the views of others that cigarettes were not safe and acting on the views that cigarettes were not safe while taking no position. "Were the existing cigarettes safe or unsafe?" asked Mr. Trudel. "We had no position," Mr. Mercier replied.  He said that the launching pad for the idea was the Surgeon General's report that identified certain substances as being hazardous. "I am not a scientist. For me it seemed simple. Take a cigarette, analyze the smoke and figure out where the problem is. What is difficult is eliminating the problem." (EMN stood for Eliminate, Modify, Neutralize).

His speaking notes and those of Mr. Warren were preserved (Exhibit 254),

Within 6 months, BAT had poured cold water all over the idea.  Mr. Mercier described the head of BAT's holding company, Patrick Sheehy, as the "chairman of chairmen - the highest level" officer in the BAT family. In December Mr. Sheehy wrote to the highest Canadian level - Purdy Crawford, president of IMASCO: (Exhibit 255A).
"The BAT objective is and should be to make the whole subject of smoking acceptable to the authorities and to the public at large since this is the real challenge facing the industry. Not only do I believe that this is the right objective but I also believe that it is an achievable one."

(Mr. Crawford did not agree! - Exhibit 255)

Scheduling, Rulings, Varia

Three new documents popped up this morning in the ever-so-helpful database of the plaintiffs. They were separate rulings from Justice Riordan with respect to the industry motions to that were heard on April 17 and which proposed to knock three of the federal government's expert witnesses out of the trial.

Justice Riordan disagreed with the companies, and found that Dr. Len Ritter's expert opinion (on toxicology) was within his competence, did not usurp the role of the judge and was relevant. Dr. Ritter's expert opinion stays.

Justice Riordan disagreed with the companies, and found that Dr. Bill Farone's expertise in chemistry was relevant to Canada, even if most of his work had been in the United States.  Dr. Farone's expert opinion stays.

Justice Riordan agreed in part with the companies, but for somewhat different reasons than they presented, He ruled that much of Dr. David Burn's report was not relevant to the action in report.  Dr. Burns' expert opinion must be rewritten with many sections removed to be acceptable.

And - in a late breaking development - another ruling appeared this evening.  This one provides Justice Riordan's decision to side with the plaintiffs in the procedural issues argued on April 5th. (At least that's what it seems like this late in the evening! - more later)

A new witness schedule that has been under active discussion has apparently still not been resolved.  It now appears that Mr. Jean-Louis Mercier will testify for the remainder of tomorrow, Thursday May 3rd, and that Mr. Anthony Kalhok will appear next week, as will Mr. Ed Ricard.

Mid-day, Mr. Trudel announced that Mr. Ackman had been served with subpoena to reappear.

Day 21 - A tale of two testimonies: Bédard and Descoteaux

Today two witnesses appeared before the Montreal tobacco trials -- Michel Bédard (former head of the industry-funded Smokers Freedom Society) in the morning and Michel Descôteaux  (former VP of public affairs for Imperial Tobacco Canada Ltd.) in the afternoon.

It would be an exaggeration to say that the two Michels gave us an experience of "the best of times and the worst of times," but there were marked contrasts in the testimony of these two friends and former spokepeople on tobacco issues.

The morning was marked by (my opinion) tortuous exchanges between Bruce Johnston, who gave example after example of the Smokers' Freedom Society acting as a provisional army for the Canadian tobacco companies, and Mr. Bédard, who gave example after example of how to avoid answering questions.

The afternoon, on the other hand, was (my opinion) a tightly focused interview between Bruce Johnston and Michel Descoteaux, who provided mostly clear answers about his role in explaining away Imperial Tobacco's decision to destroy scientific documents.

But to begin at the beginning....

The grand seduction ... but who seduced whom?

When Mr. Bédard's testimony resumed promptly at 9:30, it was no longer André Lespérance who was asking questions, but his colleague, Bruce Johnston. The first questions regarded how it was, exactly, that the Smokers' Freedom Society was established.

As he had yesterday, Mr. Bédard gave much of the credit to Pierre Lemieux (a local libertarian and author of a number of essays and books against tobacco control). It was Mr. Lemieux who was the "chef d'orchestre" behind the agreement with the industry to fund the Society. Mr. Bédard seemed a little taken aback when later Mr. Johnston presented him with a document showing that at least one tobacco company president considered that it was he - Mr. Bédard - who had been recruited. (Exhibit).

Dancing on the head of a non-answer

There were many points in the morning when Mr. Bédard seemed to struggle in keeping up with his own story when Mr. Johnston provided documents that suggested a very different version. His statement that Dr. Dollard Cormier's review of the Royal Society Report on Addiction was commissioned without any expectation of results favourable to the Society or its underwriters was countered with a memo from Mr. Bédard reporting the "good news" that Dr. Cormier would "cooperate" and that "his opinions are clear ... tobacco is not addictive." (Exhibit 209)

Similarly, his assertion that the Smokers Freedom Society operated independently of the industry was worn down by multiple documents presented showing that the Society had mirrored the position of the industry with respect to addiction (Exhibits 218, 219), smoking bans, (Exhibit 217) advertising bans (Exhibit 225),  and health warnings (Exhibit 216).  (See also exhibit 214 and 214a)

Frequently, the internal logic of his testimony took the scenic route.

The conclusions of the Surgeon General that tobacco was addictive, for example, failed to persuade him, despite the weight of scientific support it received. "The number did not impress me - I was looking for the strength of the argument," said the man who earlier admitted to having no medical or science background.  On the other hand, he readily accepted as established fact that light cigarettes were less  harmful and that filter cigarettes represented a health improvement.

Smokers are entitled to more information, he said, but only in reference to advertising and not from package warnings or inserts.  Smokers have abundant information about the harms of smoking, he said forcefully, but when pressed to provide an answer, he could not quantify the risks of smoking in terms of number of people killed.

Curiously, the man who had worked hard to blunt the introduction of Canada's first tobacco laws and regulations told the court that these measures were effective at reducing smoking.  The "bouquet of measures" that governments were using - like taxes and smoking bans - will make a difference.

It was enough to try the patience of a judge.  And more than once, Justice Riordan interrupted Mr. Bédard to press him to answer the questions put to him more directly.

Professional liars

Mr. Bédard's testimony, confirmed by several documents produced, showed that the financial relationship between the tobacco companies and the Smokers Freedom Society hindered its credibility. "Generally, people thought that because we were funded by the industry we were professional liars," said Mr. Bédard.

One analysis prepared by CTMC President, William Neville, suggested an approach to this problem. "Whatever we might prefer, there is no realistic alternative alternative to direct industry funding of this program, a factor which can be given varying degrees of de-emphasis."(Exhibit 208)

Toronto Sun, September 4, 1986

As the morning drew to a close, Bruce Johnston showed him a clipping from the Toronto Sun in which -- many weeks after signing a $300,000 a year agreement with the industry, Mr. Bédard tells journalists that  "his group had received $100,000 from Canada's four largest tobacco companies, its unions and tobacco growers and wholesalers." Mr. Bédard said he believed that the journalist had faithfully reported his comments, but did not offer why he had chosen to 'de-emphasize' the amount that he had received. (Exhibit 226)

With the issue of a strategic de-emphasis hanging in the air, Suzanne Coté began a short cross-examination of Mr. Bédard.  She referred him to the agreement between the companies and the Smokers Freedom Society (Exhibit 198), and the clause regarding the payment schedule.  Why, had not only the first two payments of $50,000 been issued? Did this not add up to the $100,000 that was reported in the Toronto Sun?

Mr. Potter's cross examination established that Mr. Bédard had not met with any lawyers before his testimony in the trial, that he had quit smoking cold turkey, and that he had never sought input from the companies with respect to the content of his newsletter, the Calumet. (Exhibits  215, 215A, 215B, 215C, 215D, 215E, 215F, 215Gf, 215Gg, 215H )

The last questions returned to Mr. Johnston.  He returned to the statement in the Toronto Sun that the Society had received money not only from tobacco companies, but also from unions and tobacco growers and wholesalers.  Mr. Bédard acknowledged that he had no knowledge of whether money had come from the unions or tobacco growers ("I cant say because I did not see how the money was obtained"), but acknowledged that no agreement had been in place with the other groups.

The return of Mr. Descoteaux. 

Mr. Descôteaux  was the first witness to appear at this trial - and he testified over the first two weeks of the trial (March 13 - 22). But the man who returned to the court this afternoon, about a month later, was more sombre, and provided answers that were more concise and less ornamented with extraneous detail.

Justice Riordan, who had once ruled that Mr.  Descôteaux  was "attempting to favour his employer of  over thirty years" might have had more difficulty coming to such a determination today.

Mr.  Descôteaux was more casually dressed (his bright red sweater made him stand out in a room of black robes), and in some ways appeared more relaxed.  (Only his deep sighs between questions that were clearly carried over the loudspeakers suggested any feeling of pressure).

He allowed that since he last appeared he had read transcripts of the trial, and attributed to this reading a much clearer memory of the events around a key media event in 1998 when a story broke that Imperial Tobacco Canada had destroyed some of its scientific research papers.

It was this news event on which Bruce Johnston's questions were principally focused. He presented several news stories and probed where Mr.  Descôteaux  had received the information he gave the media.

After having been quizzed on several of his quoted comments to the media, and his limited grasp of the details behind the story, Mr. Descoteaux explained the circumstances he faced when the story broke.   "What we are talking about here is my comments about the facts.  I don't know the details. I hear an accusation. I get the facts to respond. And then once I have the facts I go and communicate them to the public in the course of a press conference and then in zillions of interviews that follow."

What he knew he had been told by Mr. Ackman -- but there was much he had not been told.

Q. Was it your understanding that this type of process had been done before and was done after?

A. Based on what I read here and what I read on the others, it would have been my understanding at the time. That was the information I was given.

Q. Were you told that BAT wanted them destroyed? 

A. No

Q. If all you were doing was cleaning out your files, were you prepared to answer why senior external counsel was involved? Did you know why they were involved?

A. No.

Q. Was it discussed with Mr. Ackman whether Imperial Tobacco had an obligation not to destroy documents such as these if litigation was under way? 

A. I don’t think so.


At four o'clock, Mr. Johnston thanked the witness and ended his questions.  Mr. Lespérance then explained that there were several documents he wished to put on the record. With many fewer objections than had been expressed when Mr. Descoteaux first took the stand more than 300 exhibits ago, another series of documents were put on the record.

Tomorrow, Wednesday May 2nd, Mr. Lespérance will continue to ask Mr.  Descôteaux to assist in the introduction of documents, after which the tobacco industry will have their opportunity for cross examination. At 11:00 a.m., Mr. Mercier is expected to return for more questions.

Day 8 - Lawyers Fight, Evidence Comes to Light

Day eight of the trial began with lawyers arguing various procedural issues. Justice Riordan asked Imperial Tobacco's legal team if they had reconsidered their position from yesterday about not consenting to admit a newspaper article. Lawyer Suzanne Côté said Imperial was prepared to admit that the article was published, provided it was not admitted that the words in quotation marks in the article were actually spoken to the journalist by the persons reportedly quoted.

This would still have prevented the plaintiffs from questioning Imperial's former Director of Public Affairs, Michel Descôteaux, on his quote in the article, since Mr. Descôteaux testifed yesterday that he did not remember the interview, so the plaintiffs will still need to subpoena the journalist to get the quotes into the record in order to be able to question Mr. Descôteaux about his quote.

The lack of collegiality continued among the lawyers as plaintiff lawyer Bruce Johnston set about questioning Mr. Descôteaux on the issue of document destruction. Mr. Descôteaux testified that he first heard about the issue in 1998 when the Non-Smokers' Rights Association (NSRA) publicly accused Imperial Tobacco of having destroyed documents. He said that he quickly issued a press release denying it.

Mr. Johnston began questioning Mr. Descôteaux about the press release, prompting Imperial lawyer Deborah Glendinning to complain that the press release should be put in front of Mr. Descôteaux to help him remember what it said. Mr. Johnston told the court that the plaintiffs did not have the press release, and carried on questioning Mr. Descôteaux. A few minutes later, Ms. Glendinning interrupted again to announce that Mr. Johnston had been wrong and Imperial did in fact disclose the press release, even quoting a control number for it.

"We don't have that," piped up plaintiff lawyer André Lespérance, "did you claim privilege on it?"

"Why do we have a control number that shows up nothing?", added Mr. Johnston looking over his colleague's shoulder at a computer screen.

"We're sending it to Mr. Lespérance right now," said Ms. Côté for Imperial. Later, Ms. Glendinning promised to give the court a full explanation of how this document (exhibit 57) had not been disclosed to the plaintiffs.

The comments from both sides got somewhat confrontational after this, finally prompting Justice Riordan to admonish both sides to tone things down. "We're going to be in very close quarters here. It's not exactly a submarine, but it's close," the judge said.

"We have to re-establish a serene atmosphere," Justice Riordan went on to say.

Ms. Glendinning replied that she was offended that Mr. Johnston had accused her earlier of abuse of process. Justice Riordan replied by explaining to her that, in the Quebec Civil Code, abuse of process is a technical administrative term and that she was reading more into it than she needed to. The judge said that he took Mr. Johnston's comments as administrative in nature in the context that Mr. Johnston has already given the court notice of his intention to bring a formal abuse of process motion at a later time.

The section of the Quebec Civil Code that Justice Riordan was referring to was section 54.1, which says:

A court may, at any time, on request or even on its own initiative after having heard the parties on the point, declare an action or other pleading improper and impose a sanction on the party concerned.

The procedural impropriety may consist in a claim or pleading that is clearly unfounded, frivolous or dilatory or in conduct that is vexatious or quarrelsome. It may also consist in bad faith, in a use of procedure that is excessive or unreasonable or causes prejudice to another person, or in an attempt to defeat the ends of justice, in particular if it restricts freedom of expression in public debate.

Justice Riordan's admonishments for more collegiality seemed to have no impact when, minutes later, Mr. Johnston tried to admit two letters signed by Simon Potter (now counsel for Rothmans, Benson and Hedges (RBH) but then counsel for Imperial Tobacco) into evidence. To that point in the morning, Mr. Potter had moved from his usual spot among the industry lawyers to a seat in the public gallery of the courtroom, his finger tapping away at his iPad and his eyes rarely glancing up from the screen. Now Mr. Potter returned to his usual seat and told the court that neither he nor RBH objected to Mr. Johnston admitting the letters into evidence.

Imperial Tobacco and JTI-Macdonald, however, did object, forcing Mr. Johnston to go through the formality of calling Mr. Potter to the witness stand to validate the letters as evidence. "I have no reason to doubt that this is a copy of what was written then," Mr. Potter said, finally enabling his two 1992 letters to British American Tobbaco (BAT) concerning Imperial Tobacco's destruction of various documents to be admitted as exhibits 58 and 59.

"Is there no cross-examination?" asked Mr. Potter, turning theatrically to the Imperial Tobacco lawyers once this formality was over with. The tension in the room was such that the joke fell flat except for a chuckle from the author of this blog and few grins from the federal government lawyers sitting quietly at the back.

The atmosphere did not improve at all in the afternoon when Ms. Glendinning rose to address the court on the issue of scheduling Roger Ackman's testimony, starting April 2. She emphasized Mr. Ackman's frailty and expressed concern that he might not be able to handle the kinds of procedural delays that have characterized Mr. Descôteaux's testimony. However, when Mr. Lespérance rose at the end of the day to propose an expedited process to admit documents, which would not only speed up the trial but spare Mr. Ackman from having to wait through the process of validating each document on the witness stand, the industry lawyer's scoffed at Mr. Lespérance's suggestion.

The logical implication of the tobacco industry lawyers' refusal of Mr. Lespérance's suggestion is that, though they are concerned about Mr. Ackman's health, they would rather the plaintiffs simply do without evidence than stop objecting to documents at every possible opportunity for Mr. Ackman's sake. No doubt the plaintiffs do not wish to sacrifice their case by allowing evidence to fall by the wayside. Justice Riordan urged the sides to try to find a compromise before Mr. Ackman takes the stand on April 2nd.

Document Destruction
For a short time, the Michel Descôteaux of the first few days of the trial, whose testimony was filled with colourful stories, returned when Mr. Johnston was questioning him about the document destruction issue. Mr. Descôteaux remembered getting a call from a journalist at 10 or 11 in the morning asking for a comment on a breaking story that the NSRA had accused Imperial Tobacco of dstroying documents. The NSRA had obtained copies of Mr. Potter's letters to BAT.

Mr. Descôteaux remembered running from his third floor office to Roger Ackman's office to ask him about it. But his memory seemed to fade once asked about what happened after he got to Mr. Ackman's office. He could not recall whether it was Mr. Ackman or someone else who told him the things that went into the press release. He could not recall if he spoke to Mr. Potter that day. He could not recall if he even thought about speaking to Mr. Potter, who the NSRA alleged had destroyed the documents. He could not explain any of the statements in the press release, such as what Imperial Tobacco meant that the destroyed documents were "readily available", to whom they were "readily available", and whether the use of the qualifying words "for the most part" meant some of the documents were, in fact, not readily available.

Project Four Seasons
After he finished examining Mr. Descôteaux on the document destruction issue, Mr. Johnston moved on to an exchange of letters in 1989. On January 12, 1989, PJ Fennell of RBH wrote to Imperial Tobacco President Jean-Louis Mercier concerning the role of the Canadian Tobacco Manufacturers' Council (CTMC) in various industry-wide initiatives (exhibit 60A). Five days later, Mr. Descôteaux wrote to Mr. Mercier, his boss, critiquing Mr. Fennel's proposals (exhibit 60).

Regarding something called the "Four Seasons Project", Mr. Fennel wrote to Mr. Mercier:

The Four Seasons project, as well as the Bill C-51 litigation, has already been well managed by the individual companies with necessary coordination through the communication of the lawyers representing the companies

In response to this, Mr. Descôteaux wrote to Mr. Mercier:

[translation]As I recall, the CTMC is not part of this project, apart from Neville himself, and his involvement is relatively modest

Although Mr. Descôteaux once knew enough about the "Four Seasons Project" to write to Mr. Mercier about what Bill Neville's level of involvement was, when asked about it by Mr. Johnston he said he could not now remember what it was.

Mr. Johnton then said to Mr. Descôteaux: "I suggest to you it was a project to prepare for anticipated product liability litigation".

Mr. Descôteaux replied: "Now that you mention it, it has to do with legal considerations. Now that you menton it, that rings a bell. But in what way, I don't remember."

The voluntary adoption of cigarette adversiting restrictions by the industry was successful in preventing the enactment of much more stringent federal legislation

In the afternoon, Mr. Johnston confronted Mr. Descôteaux with a memo he wrote in 1979 setting out his vision for how to structure the advocacy work of the CTMC (exhibit 66). Among Mr. Descôteaux's statements in this memo were:

The voluntary adoption of cigarette adversiting restrictions by the industry was successful in preventing the enactment of much more stringent federal legislation. Are there some other moves that the industry could make that would reduce the pressure to pass these anti-smoking bylaws? How about smokers' education programs?

and

if Halifax did adopt an anti-smoking bylaw, what could we do to reduce its impact on other municipalities in N.S.? in the other Maritime Provinces? The Non-Smokers Rights Association has repeatedly said that one of its major objectives for the immediate future was the promotion of smoking bans or restrictions in the workplace. What can we do about this?

and

The objective of this strategy would be to have a local battle fought on local grounds by local people in order to avoid leaving the impression that it is the multinationals that are fighting the battle.

After introducing this memo, Mr. Johnston asked Mr. Descôteaux if his job included trying to prevent municipal smoking bylaws.

"Prevent them or make them more reasonable for smokers," Mr. Descôteaux replied.

"Less stringent if possible?" Mr. Johnston asked.

"Yes," said Mr. Descôteaux.

The trial will resume on April 2 with a new witness, former Imperial Tobacco Vice-President of Legal Affairs Roger Ackman. Mr. Descôteaux will likely be recalled at some future time to answer further questions once the admissibility of the newpaper article, and other documents relevant to him, is resolved.

A new guest contributor will pick up this blog on April 2.

By Michael DeRosenroll for Cynthia Callard

Day 7 - Industry objections intensify

Day 7 of the trial began with Mr. Descôteaux excluded from the courtroom as the lawyers spent half an hour debating whether the plaintiffs should be allowed to continue questioning him on Imperial Tobacco's use of the courmarin as an additive.

Plaintiff-side lawyer André Lespérance referred Justice Riordan to numerous documents that are not yet part of the trial record but which the plaintiffs plan to raise later concerning the alleged use of coumarin as an additive by Imperial Tobacco. Imperial lawyer Deborah Glendinning interupted repeatedly to complain that the judge should not rely on these documents because they are not yet evidence, but Justice Riordan made a distinction between whether they are evidence as to the merits of the case versus whether they could be used to determine whether questions to Mr. Descôteaux would be relevant to the case. He allowed the questioning to proceed.

In a non-sequiter to this discussion, Rothmans, Benson and Hedges (RBH) lawyer Simon Potter rose to complain to the court that this blog referred to coumarin as rat poison yesterday. “It is not rat poison!” he declared emphatically.

It is currently unclear whether the distinction between whether coumarin is a rat poison or not will be a relevant issue in the outcome of the trial. Should it be relevant to the outcome, then clearly its proper characterization will be disputed. What came to light from today's evidence was that Imperial Tobacco also takes issue with the characterization of coumarin as rat poison, on the basis that being the active ingredient in some rat poisons is not same thing, in Imperial Tobacco's view, as being rat poison per se.

Mr. Johnston spent most of the morning questioning Mr. Descôteaux on various documents prepared to respond to questions on Imperial Tobacco's use of additives. Mr. Johnston spent the most time comparing the final version of a question and answer document that Mr. Descôteaux sent to Imperial President Jean-Louis Mercier on May 2, 1985, (exhibit 47) with a draft version of the same document dated two days earlier (exhibit 50). The earlier draft contained many handwritten changes in handwriting that Mr. Descôteaux admitted was his own.

Almost all of Mr. Descôteaux's handwritten changes to the draft were made to the final version, including completely striking out a talking point that would have denied that Imperial added nicotine to any of its products. Mr. Descôteaux said he had no recollection of why he made any of the changes.

At this stage of the trial, little evidence has been led on what the health effects of using coumarin, or other additives, in cigarettes would be. The main issues of the morning were what Imperial Tobacco knew and what it told the public about additives.

An objection-filled afternoon

The afternoon court session began with Ms. Glendinning rising to discuss witness scheduling matters, then to complain about the fact that Mr. Descôteaux's testimony has gone on much longer than the plaintiff-side originally estimated. Mr. Johnston assured the court that Mr. Descôteaux's testimony would end on Thursday.

After complaining about how long Mr. Descôteaux's testimony was taking, the tobacco industry lawyers then used up a significant part of the afternoon session on objections. The most noteworthy of the objections came when Mr. Johnston tried to introduce a newspaper article in which Mr. Descôteaux was quoted. However, since Mr. Descôteaux could not recall giving the interview, the industry lawyers objected to entering the article into evidence.

Mr. Johnston noted that lawyers normally consent to admitting newspaper articles, since the fact that they were published can be verified online, but the industry lawyers refused to consent to this. This means the plaintiffs will likely have to subpoena the journalist who wrote the article to establish the fact that he interviewed Mr. Descôteaux, then recall Mr. Descôteaux at a future time to question him about his reported comments. Mr. Johnston called this "perfectly abusive" on the part of the industry. Even when Justice Riordan assured the industry layers that he would not consider the article proof of the truth of its contents, but rather only consider it proof that the article had been published, which would have enabled Mr. Johnston to then question Mr. Descôteaux on his comments, the industry lawyers would not change their position.

The witness didn't answer the question clearly when he was asked before, perhaps that's why he's being asked again

Another document that elicited a number of industry objection, although this one was admitted into evidence, was a 1974 British American Tobacco "Group Smoking and Health Policy document" (exhibit 54A). The tobacco industry lawyers repeatedly objected to Mr. Johnston's attempts to question Mr. Descôteaux on the contents of the document on the grounds that Mr. Johnston had already asked Mr. Descôteaux about the same issues. This led Justice Riordan to say at one point: "The witness didn't answer the question clearly when he was asked before, perhaps that's why he's being asked again. I'll permit the question."

Among the guidelines set out in this document were "Warning notices in advertising should be resisted as long as possible" and "If Governments insist on warning notice on packs the wording should make it clear that is emanates from a Government source".

Suggesting lower "tar" and nicotine cigarettes as an alternative for those employees who cannot or do not wish to stop smoking

Toward the end of the day, Mr. Johnston questioned Mr. Descôteaux on a report he submitted to British American Tobacco in March 1981 "covering smoking and health developments in Canada" in the fourth quarter of 1980 (exhibit 56A). Among other things, Mr. Descôteaux's report that the Quebec government was planning an "intervention to discourage smoking" and that the Canadian Tobacco Manufacturers Council (CTMC) was planning a lobbying campaign to oppose some of the proposals.

The report also summarized Imperial Tobacco's efforts to influence an employee "anti-smoking educational campaign" undertaken by Alcan Aluminum Ltd., which Mr. Descôteaux called "Canada's major aluminium producer - and an important Imperial Tobacco supplier." Mr. Descôteaux's reported that, after Imperial made contact with an Alcan official, the official expressed an interest in "suggesting lower "tar" and nicotine cigarettes as an alternative for those employees who cannot or do not wish to stop smoking."

While questioning Mr. Descôteaux about the CTMC's lobbying in Quebec, Mr. Johnston asked Mr. Descôteaux if there were ever proposals to discourage smoking that went unopposed by the CTMC.

"Nothing comes to mind," replied Mr. Descôteaux, although he insisted that there might have been.

Tomorrow will likely see the end of Mr. Descôteaux's testimony for now, but he may now need to be recalled in light of the industry lawyers' refusal to admit the newspaper article objected to today.

By Michael DeRosenroll for Cynthia Callard

Day 6 - Mr. Descôteaux's own words

Day five of Michel Descôteaux's marathon testimony came to a climax in the morning when plaintiff lawyer Bruce Johnston started questioning him on documents that Mr. Descôteaux himself had authored.

In previous days, most of the documents Mr. Johnston questioned Mr. Descôteaux about were ones sent to Mr. Descôteaux by others. The pattern of Mr. Descôteaux's responses has been to admit little or no recollection of ever seeing the documents, usually admitting that if he is listed as a recipient he probably got them, and then talk at length about his recollection of what Imperial Tobacco's public positions were and about his role in the company's public relations. The length of Mr. Descôteaux's answers has already extended his testimony two days longer than originally scheduled.

Other than a few contradictions, notably his statement yesterday that the Supreme Court of Canada's unanimous 1995 assertion that it had been proven beyond a reasonable doubt that smoking causes many diseases was "nothing new", an assertion he backtracked from when confronted with Imperial Tobacco's contradictory public position, Mr. Descôteaux has remained relatively consistent about what facts Imperial knew and what it's public positions were. He has rarely varied from the public positions he was primarily responsible for communicating for decades, even when confronted with contradictory internal documents, instead denying knowledge of the documents and insisting that there must be some explanation for the contradictions.

This dynamic changed significantly when Mr. Johnston began confronting Mr. Descôteaux with documents he authored himself. The long rich anecdotes that had previously characterized Mr. Descôteaux's answers became scarce. His answers became shorter and shorter, often reduced to monosyllabic "yes"es and "no"s. The pattern of not having any memory of the documents being put in front of him continued, but gone were the lengthy explanations why this would be the case. Throughout the questioning, Mr. Descôteaux hardly ever looked up from the documents in front of him, rarely glancing at Mr. Johnston standing to his left.

Influencing Overall Tobacco Consumption
One of the first documents Mr. Descôteaux had so little to say about was a 1995 memo he sent to a then-new executive, Mike Courtney, entitled "Corporate Affairs Objectives, Priorities and Organization"(exhibit 38). The memo, Mr. Descôteaux wrote in the introduction, reflected the input of other senior executives.

Under the heading "consumption", after reiterating Imperial Tobacco's public position that they did not try to influence individual decisions to smoke or not, Mr . Descôteaux wrote:

This position, however, does not preclude - nor should it preclude - ITL from getting involved into issues that may have more or less of an impact on the overall size of the market. For example, government taxation policies can have a bearing on the overall size of the market, although our best research shows that it is marginal at best. Similarly, smoking bans and restrictions mayor may not have a bearing on the amount smoked daily by the individuals that are affected by them. What is important to distinguish here, is whether our actions are directed at the individual decision per se or whether they are directed at the environment globally.

Identify Possible Controversial Material and Prepare a Position
Mr. Johnston then spent a significant amount of time questioning Mr. Descôteaux about a memo he received in 1988, labelled "draft", entitled "Public Relations Plan Liability Litigation" (exhibit 40). Although Mr. Descôteaux was not the author of the memo, there are many handwritten notes on it that he conceded were his handwriting.
The 14-page memo set out an extremely detailed public relations plan for dealing with anticipated product liability litigation, to which Mr. Descôteaux added further detail with his notes, such as "identify possible controversial material and prepare a position" below a recommendation to create case specific backgrounder papers. The document also recommended close collaboration between lawyers and public relations staff, since it recommended using lawyers as key company spokespeople during trials.
Mr. Descôteaux insisted he had no memory of this document and that it had never been acted on by Imperial Tobacco. However, other exhibits showed that he would later cite product liability litigation as the primary public relations challenge facing the company (exhibits 38 and 39) and he would later recommend creating "the creation of a small legal/pr task force for long-term handling" of product liability litigation (exhibit 38, item 2.5.1).
Increase per capita Usage in Canada

In 1994, Mr. Descôteaux co-authored, along with Bob Bexon and Bill Sanders, a memo to Imperial's Management Commitee called "Re: Public Policy Objectives". In it, they outlined a list of possible public policy objectives to be discussed at a future meeting. One of the objectives under consideration was to "Increase per capita Usage in Canada".

"To do this", Mr. Descôteaux and his co-authors wrote, "means that, in some combination, we will have to get more people to start ... make less people quit ...or increase the rate of daily usage among existing smokers."

Lobbying re: plain packaging and sponsorships

Also in 1994, Mr. Descôteaux wrote a memo to Bob Bexon outlining his suggestions for lobbying against plain packaging of tobacco products and tobacco sponsorship prohibitions. Mr. Descôteaux wrote: "...the objective should be to mobilize huge numbers of people into some form of action so as to deluge the government with individual and collective expressions of protest." (emphasis in original)

This tobacco industry lawyers objected strenuously to the admission of this document as evidence because it has extensive handwritten annotations and the author of these annotations was not established. Justice Riordan ultimately allowed Mr. Descôteaux's typed portion to be admitted (this is quoted from above) but reserved a decision on the admissibility of the handwritten notes until later in the trial. A clean copy of the memo, without the handwritten notes, will be made available in this space when possible, pending Justice Riordan's ruling on the admissibility of the annotations.

Boston Tea Party II

In 1991, Mr. Descôteaux circulated a memo to Imperial Tobacco's senior management with talking points on a forthcoming anti-tax initiative from the Canadian Tobacco Manufacturers' Council (CTMC) (exhibit 45). Mr. Descôteaux represented Imperial Tobacco on the CTMC. The memo called the campaign, which involved attempting to mobilize millions of individual smokers to lobby government, as well as retailers, tobacco growers and others, the "Boston Tea Party II".

Talking about this campaign was the one time in the day in which the Mr. Descôteaux of the last several days, with his long answers, seemed to return. He described in detail how packages were printed with postcards to the Prime Minister that people could sign and send without even needing to a add stamp. This led him to one of his characteristic tangents on how the Parliamentary "Frank" works (this is the term for the free mailing system to and from Members of Parliament through Canada Post).

When Mr. Johnston asked Mr. Descôteaux if there was a big response to the campaign, Mr. Descôteaux looked up from his papers, grinned at Mr. Johnston and said "He got zillions of them, zillions" (referring to the Prime Minister).

Industry Objections

The industry lawyers raised numerous objections thoughout the day's testimony, managing to delay or prevent some evidence from being admitted. Every time Mr. Johnston raised plain packaging or contraband, the industry lawyers objected strenuously. At one point Mr. Johnston referred to them as a tag team for the way they would take turns objecting on the same issues.

On contraband, the industry lawyers repeatedly challenged its relevance. JTI-Macdonald's counsel argued that raising contraband as an issue amounted to the plaintiff amending their pleadings, to which Mr. Johnston replied that the industry's efforts to obstruct tobacco control measures had already been pleaded to. This would make the industry's actions on contraband relevant to the extent that they obstructed tobacco control. Rothmans, Benson and Hedges lawyer Simon Potter twice warned that getting into contraband would turn this from a two-year trial to a four-year trial because he is prepared to go into great detail on the matter. Ultimately, Justice Riordan allowed Mr. Johnston to put questions to Mr. Descôteaux about Imperial Tobacco's public positions on contraband and taxation levels. The relevance of contraband as an issue in the trial will likely continue to be disputed by the industry lawyers every time it comes up.

The day ended with a lengthy argument over industry objections to the admission of documents concerning the use coumarin, a rat poison, in cigarettes in Canada. As the lawyers argued, Cecilia Létourneau, the representative plaintiff in the addicition clawsuit, who has sat quietly at the side of the courtroom throughout the process, leaned forward in her chair with her hands pressed pensively over her mouth. Justice Riordan admitted one document concerning coumarin, a 1985 Q&A that Mr. Descôteaux wrote for senior Imperial Tobacco executives concerning the use of additives in cigarettes generally that briefly mentioned coumarin (exhibit 47), and reserved his decision on others pending more arguments from the lawyers tomorrow.

Mr. Johnston never did get to the document destruction questions he was cut off from asking at the end of the day Monday, though he could still get to them tomorrow, which is scheduled to be Mr. Descôteaux's last day of testimony.

By Michael DeRosenroll for Cynthia Callard

Day 5 – What Imperial Tobacco Said, and When

The first “extra” day of Michel Descôteaux's testimony began with plaintiff lawyer Bruce Johnston notifying the court that Descôteaux's testimony will likely need to be extended by yet another day. Originally scheduled to testify for three days, and already extended to five in light Mr. Descôteaux's penchant for long answers, Mr. Johnston advised the Court that his team had just finished going through over two thousand newly disclosed documents provided to them by Imperial Tobacco on the Friday before the trial and found approximately fifty relating to Mr. Descôteaux that they might need to question him on. Justice Riordan left the question open as to whether Mr. Descôteaux's testimony would be extended to Wednesday or whether he would be asked back another time, but jokingly reassured Mr. Descôteaux that he would try get him out before golf season starts.

Mr. Johnston then spent the bulk of the day going through what Mr. Descôteaux called the evolution of Imperial Tobacco's view on the health effects of smoking over Mr. Descôteaux's thirty-five year tenure in the public relations department. Mr. Descôteaux said he could not remember specific dates of specific changes, but when asked by Mr. Johnston to describe the evolution in broad strokes he said:

When I joined Imperial, in the early years our position was focused on whether smoking was associated in a causal manner with various diseases. When I left, the position was that smoking was causally associated with lung cancer and other diseases that I can't remember. In between there was a time we said smoking was associated with health risks.

Added Mr. Descôteaux: “Someone could map out these changes going through the different newspaper interviews and radio interviews.”

But questions began to arise when Mr. Johnston began to do this by going through a series of documents with Mr. Descôteaux. Early on, Mr. Johnston had Mr. Descôteaux read a portion of the 1995 Supreme Court of Canada decision striking down the 1989 ban on tobacco advertising in which Justice LaForest wrote, speaking on this issue for a unanimous Court:

Smoking causes about 30% of all cancer deaths, 30% of all coronary heart  disease deaths and about 85% of all chronic bronchitis/emphysema deaths in  Canada and United States. In addition, smoking is a major cause of deaths due to aortic aneurysms, peripheral artery disease and fires. There is growing evidence that smoking is also an important cause of deaths due to stroke. In terms of the scientific evidence available, the causal role of smoking in the major diseases described above is firmly established beyond all reasonable doubt.

About this passage, Mr. Descôteaux said: “There's nothing new in there. We were aware of all that. What we were challenging was not the smoking and health elements but rather whether the ban violated our constitutional rights.”

“Are you saying there was nothing new in that is was established beyond a reasonable doubt?”, Mr. Johnston followed up.

“Is that not what I said? The Isabelle Commission said that back in 1969”, Mr. Descôteaux
replied.

However, as Mr. Johnston went on to introduce numerous documents from 1976 through 1994 indicating that Imperial Tobacco's public position remained that causation between smoking and various diseases was a matter of scientific controversy, Mr. Descôteaux backtracked. “In my mind, there was a scientific controversy”, he said.

“But you said [a consensus] went back as far as the Isabelle Commission, do you want to correct that?”, Mr. Johnston followed up.

“I don't know what the position of these companies was that far back. It may have been the same. I don't know,” Mr. Descôteaux replied.

The earliest document Mr. Johnston introduced in which Imperial Tobacco acknowledged a causal link between smoking and any diseases was 1998 (exhibit 34). When asked, Mr. Descôteaux could not think of any earlier ones than this, but said he could not rule out that there were some he had forgotten.

Poor Audio Quality Throws Admissibility of Some Evidence into Question

Mr. Johnston actually tried to extend the timeline back as far as 1969 but was not able to get a radio interview from that year entered into evidence. The industry lawyers successfully objected to Mr. Johnston introducing a transcript of the recording, even though it had been made by court stenographers, but Justice Riordan consented to allow Mr. Descôteaux to listen to the recording to see if he recognized the voice of the speaker, whom Mr. Johnston claimed was then-Imperial Tobacco President Paul Pare.

Mr. Descôteaux made a first attempt in the morning, listening through a laptop computer's tiny speakers, but could not identify the voice on the very poor quality recording.
The recording was played again in the afternoon, this time through the courtroom's speakers. Although better quality, it still sounded as though the voices of the interviewer and interviewee were echoing through a tin can. Mr. Descôteaux stared intently at the ceiling, rotating comically as he did so, then ambled to the back of the courtroom, where the public sits, with his hands in his pockets and stared at the ceiling a while longer. All the while the recording played. When he returned to the witness stand, he told the judge he could not recognize Mr. Pare's voice but thought it was probably him because of his accent. This was not enough to satisfy Justice Riordan that it was admissible, so he reserved his decision on the question of the recording's admissibility.

Outrageous and Shocking

One of the timeline documents that was admitted was an October 1987 memo from Mr. Descôteaux to Bill Neville of the Canadian Tobacco Manufacutrers' Council concerning preparation for industry representatives to appear before a Parliamentary Committee (exhibit 33). Mr Descôteaux recommended preparing responses for questions like “how does it feel to kill 35000 Canadians a year? And a few hundred innocent bystanders? Do you sleep well?”

When Mr. Johnston questioned him on this memo, Mr. Descôteaux explained that he relied on his experience and instinct to identify possible questions. He said that he put them in “outrageous and shocking” terms so that they would not be taken by surprise.

Mr. Descôteaux did not recall being so diligent in preparing a response to an April 1980 BBC television program in which a recently retired scientist from British American Tobacco (Imperial parent company), Dr. S J Green, said:

I think that in a nutshell, what we can show is that smoking is a very serious causal factor as far as the smoking population is concerned...I am quite sure it is a major factor in lung cancer in our society.

Despite receiving a memo from BAT warning that this program was soon to be broadcast and would likely be picked up by media outside the United Kingdom (exhibit 31), Mr. Descôteaux said he could not recall preparing for a media question on Dr. Green's admission. When Mr. Johnston asked him if Dr. Green's admission was sufficient to change Imperial's view about smoking causing lung cancer, Mr. Descôteaux replied that it must not have been because the position did not change for at least another fifteen years.

Hearsay and Exceptions

An important issue to be decided later in the trial was foreshadowed today when Imperial Tobacco lawyer Deborah Glendinning repeatedly objected to Mr. Johnston introducing company document on the grounds that their contents represent hearsay evidence. Lawyers for the other tobacco industry defendants put forth that the documents could be used to question the witness, but that their contents could not be used as evidence themselves.

Mr. Johnston rebutted that the first hearsay exception lawyers learn is about declarations against interest, and that he intended to use the documents as evidence. Justice Riordan rejected most of Ms. Glendinning's objections to admitting specific documents, but said that the issue raised about whether the documents can be considered evidence themselves, beyond the answers they elicited from the witness, would need to be decided later.

Tomorrow: Document Destruction

At 4:25pm, Mr. Johnston moved to the topic of document destruction by Imperial Tobacco, but Justice Riordan interrupted to note that he would be stopping for the day at 4:30pm and did not want to start on this topic unless it could be completed in five minutes. Mr. Johnston said it would certainly take him longer than that, so the day ended with this teaser of what is to come tomorrow.

by Michael DeRosenroll for Cynthia Callard

Day 4 - "Somebody could give you an explanation. I cannot.”

Michel Descôteaux’s third day on the witness stand in the Quebec tobacco class action suits began as it was to continue – with an interruption from tobacco industry lawyers.

Before the plaintiff’s lawyer, Bruce Johnston, could resume his questioning of Imperial Tobacco’s former director of public relations, the company’s lawyer Deborah Glendinning was on her feet to raise concerns about Justice Riordan’s decision the day before that declared Mr. Descôteaux a ‘hostile witness’.

 Justice Riordan clarified that it was rule 306 of Quebec’s code of civil procedure which he was invoking. (Rule 306 requires that lawyer’s questions “not be put in such a way as to suggest the desired answer, unless the witness evidently attempts to elude a question or to favour another party, or unless, being himself a party to the suit, he has interests opposed to the party who is questioning him.” )

This was apparently no more satisfactory to the companies, and they animatedly expressed a view that Mr. Descôteaux did not qualify under this rule as he neither had interests opposed to the plaintiff (as a retiree) nor had shown any attempt to elude questions.

Justice Riordan retired to consider the matter and returned in about a quarter of an hour to report that such determinations were not a science, but were based on impressions and judgement. His impressions and judgement were that Mr. Descôteaux, while attempting to be truthful, was also attempting to favour his employer of over 30 years. Rule 306 would apply, he said. “I stick by my decision.”

It was thus 10 o’clock before Mr. Johnston could resume his questioning. Before doing so he introduced several new documents into evidence. One set (Exhibits 12, 13, 14, 15, 15a, 15b and 21) concerned the attempts of Imperial Tobacco in 1980 to persuade Alcan Canada to reconsider its program to encourage its employees to quit smoking. These attempts included letters from ITL’s president, Paul Paré, to Alcan’s president, David Culver. Mr. Descôteaux provided a picture of a cosy relationship between the companies at both the leadership level (the presidents  “went to the same clubs”) and the business level (Alcan supplied the foil for ITL’s cigarette packages).

Exhibit 14: Aide Memoire

It was Mr. Descôteaux who was responsible for communicating the core of ITL's concerns to Alcan, and he did so in a meeting with and letters to Alcan’s director of public relations, Jacques Gagnon. The 'aide-memoire' he prepared after meeting Mr. Gagnon detailed Mr. Descoteaux's pitch to Alcan to reconsider its 'anti-smoking' work. There were potential adverse consequences of depriving people who ‘for genetic or psychological reasons needed to smoke,’  he had explained. Work performance might suffer, and there may even be increased deaths from stress and industrial accidents.  Much better, he suggested, if Alcan were to encourage its employees who smoked to switch to lower tar cigarettes.

He gave a positive report on his initiative to other Canadian tobacco companies, telling them he anticipated that Alcan would scale back its efforts to encourage employees to quit smoking and that the door was open to persuade Alcan to take more ‘compatible’ positions.

Mr. Descôteaux rejected the view that in  communications to Alcan or others he was being misleading. “Never was my attempt to mislead,” he said. "The question I was asked was ‘what is your company’s position?’ Giving an answer that goes against popular views is not misleading.”

He affirmed that he had no problem with the answers he gave. “I believed it was true,” he said. He repeated that his beliefs had matured with those of the company. “This [the company] is where I got my information.”

One source Mr. Descôteaux did not consider credible was the views of “anti tobacco”groups, such as the Non-Smokers’ Rights Association. “They have a habit of using documents for image impact” and inflating claims based on superficial reading, he said. When pressed by Mr. Johnston about whether Imperial Tobacco had ever similarly made inflated claims on superficial reading he bristled. “Imperial Tobacco has never behaved in a dishonest manner.”

Mr. Johnston pointed out that in his 1976 memo (Exhibit 11), Mr. Descôteaux had written that the company should engage in changing the public's view of science. “[T]he position I suggest we adopt is that we are innocent until proven guilty. We should agree to consider scientifically valid medical research findings as indications – hypotheses – that smoking may be hazardous to human health. We should denounce these with vigour and try to discredit them as much as possible.” This memo, Mr. Descôteaux told the court, reflected his own ignorance, immaturity, ambition and youthful desire to contribute at the time.

One of the last exhibits entered during the day (Exhibit 24) was a Quarterly Public Affairs Report produced by Mr. Descôteaux’s department. In it, the results of the companies regular public opinion poll (the CMA) were published, showing that the number of Canadians who agreed with the statement smoking is “dangerous for anyone” had stabilized around 67%, and that 6% of Canadians thought that smoking was “not dangerous at all”.

Exhibit 24: Quarterly Public Affairs Report 

Does this company survey showing that 6% of Canadians thought cigarettes were not harmful contradict earlier suggestions that 'everyone knew' about the harms of smoking? "I don’t think it does,” replied Mr. Descôteaux. Asked to explain, he said: “I wish I could. Somebody could give you an explanation. I wish I could. I cannot.”

Over the first two days of testimony, Mr. Descoteaux had responded to open questions with long answers, often rich in detail and personal reflection. Today, the industry lawyers were quicker on their feet to prevent his immediate reply. As the questions became tightly focused on the contrast between Mr. Descoteaux's oral history of his experience at Imperial Tobacco and the written record of his time there, he seemed to struggle more in his replies.

The court does not sit on Fridays.  On Monday's session (March 19), Mr Descôteaux is expected to  continue his testimony which will likely finish the following day. The next witness is expected to be Mr. Kalhok, to whom Mr. Descôteaux wrote his 1976 memo (Exhibit 11) which encouraged denouncing and discrediting medical science ‘with vigor’.

Next week, owing to the World Conference on Tobacco or Health, a guest contributor will continue this blog.

Day 3 - Representing smokers' interests

The third day of Montreal’s class action tobacco trial picked up where it had left the day before – with Bruce Johnston questioning Imperial Tobacco Canada Ltd.’s (ITL) former director of public affairs, Michel Descôteaux about his views in 1981 on a proposed BAT handbook on ‘Smoking and Health’ for employees. (Exhibit 4) Attention was focused on one particular aspect of a document - in this case Mr. Descôteaux’s recommendations on how to communicate the risks of smoking to employees, including his advice to say that “99% of smokers do not contract (or die from) lung cancer." (Elsewhere, the document shows that BAT preparing to tell its employees that “further reductions in the incidence of diseases associated with smoking” were forecast.)

How to communicate the risks of smoking was a question that Mr. Descoteaux was familiar with, as seen in both his testimony and the documents he wrote which have been entered as exhibits in the trial. He clearly had his own views on how to communicate risk. He wouldn’t say, for example, that “15% of smokers die from lung cancer” but would rather say that “85% of smokers do not die from cancer.” He explained that his job was to produce communications materials  that people with only a grade 2 education could understand, yet vociferously denounced as ‘absurd’ a statement like ‘each cigarette takes 5.5 minutes off your life.’

One by one, 7 more documents were introduced, and used as a basis for questioning Mr. Descôteaux on his work at Imperial Tobacco Canada Ltd. Each time one of these exhibits is presented, it is displayed on the courtrooms 8 monitors. The document also becomes electronically accessible in the non-confidential section of a database developed for the trial. Exhibits, transcripts, expert opinions and other  trial documents can be accessed at: (https://tobacco.asp.visard.ca).

Exhibit 5, for example, was a 1988 proposal by Mr. Descôteaux to proposed increased support to the Smokers Freedom Society that could, among other things, give a “sympathetic ear” to the “harassed smoker… without telling them, once again, that they have only themselves to blame and that they should quit.”  The Society, he suggested in this memo, could serve as the voice of smokers with regulators and the media, a source of information to smokers, and a funder of challenges to smoke-free laws. More than 20 years later, in responding to Mr. Johston’s questions, Mr. Descôteaux confirmed that the organization was “formed to represent  the rights and interests of smokers.”

The next documents provided insight into what rights and interests of smokers were represented by the Society. These included:  commissioning a report to challenge the conclusion of the Royal Society that tobacco was addictive (Exhibit 6), writing Health Canada to suggest that proposed health warnings went too far in linking smoking with disease (Exhibit 8, under reserve).  Although Mr. Descoteaux agreed when asked by Mr. Johnston whether the interests of smokers might also include being warned of the risks of smoking, none of the documents presented suggested that this was part of their plan of work.

The overlap between the focus of the Smokers Freedom Society and the goals of the tobacco companies, to which Mr. Johnston alluded, was linked more formally in a strategic analysis written by the President of the Canadian tobacco industry group, the Canadian Tobacco Manufacturers’ Council (CTMC).  This document (Exhibit 7) reveals that in 1991, the CTMC provided with Smokers Freedom Society with more than $900,000.

“An addiction is something you can’t get rid of”

A good part of the afternoon’s questioning was focused on addiction – on the actions of the Smokers Freedom Society to challenge a scientific consensus on the addictiveness of tobacco (by commissioning an widely distributing an opposing opinion by the University of Montreal’s Dollard Cormier) and on the role Imperial Tobacco may have played in that campaign. Mr. Descôteaux told the court that he didn’t believe that cigarettes were addictive in 1988 and that he still didn’t.  “Nothing in cigarettes prevents people from quitting,” he said. "My hypothesis is that addiction is in the individual.” He pointed to his own ability to quit smoking (twice) without difficulty, and to the fact that some individuals were addicted to patterns, like gambling, that did not involve a consumed substance in the way of cigarettes or alcohol to illustrate his points.  He likened his feelings about golf to addiction, and said he was unable to play the 97th game in a season without going to bed thinking about the next game.

The last document to be introduced showed that in 1976 Mr. Descôteaux was an early adopter of understanding the addictiveness of smoking. To assist his colleague, Tony Kalhok, prepare for a meeting arranged by BAT in its Chelwood facilities, Mr. Descôteaux prepared a memo on how the industry could fare better against attacks if it exhibited “a willingness to challenge and be challenged.” (Exhibit 11). 

“A word about addiction,” he cautioned. “For some reason, tobacco adversaries have not, as yet, paid too much attention to the addictiveness of smoking. This could become a very serious issue if someone attacked us on this front.  We all know how difficult it is to quit smoking and I think we could be very vulnerable to such criticism.”  He suggested a way to manage this vulnerability:  “I think we should study this subject in depth, with a view towards developing products that would provide the same satisfaction as today’s cigarettes without “enslaving” consumers.” This suggestion provoked someone to enter a marginal note: “Much of the satisfaction is in the effects of nicotine… i.e. would you pay $12 for 40 oz of gin if it didn’t contain alcohol?”

A few reservations

Despite the cordial tone that is set by the judge and professionally respected within Courtroom 17.09 , there were a few flashes of tension.  Almost twenty times the lawyer for Imperial Tobacco, Deborah Glendinning, rose to object to a question put to Mr. Descôteaux or to a document that was being entered in evidence. Only once did Justice Riordan agree with her. 

By mid-morning, Justice Riordan clarified that Mr. Descôteaux's positions were favourable to Imperial Tobacco and that he would now be considered a ‘hostile’ witness, a procedure which provides the plaintiffs with greater latitude in their questions. 

Of the 11 exhibits produced so far, at least 3 were objected to by industry lawyers and are on “reserved” status while awaiting a decision on their admissibility.

Hearings for this trial take place Monday to Thursday.  Tomorrow (March 15), Mr. Descoteaux will continue to testify, and will likely do so until next week, when Mr. Kalhook is expected to appear.

Day 2 - The spokesperson is asked to speak

My mother told me "never trust a man in a black dress." (Maybe she wasn't right all the time).

The courtroom was visibly different on the second day of the trial and not only because there were fewer cameras and more vacant seats. For reasons not explained, but perhaps due to the absence of witnesses, the black robes of Quebec’s court dress had not been required on the opening day. The official dress code was in effect once the real business of witness testimony began today. The medieval quality of these heavily smocked black robes (to say nothing of the judge’s oddly bright red tippet/scarf) provided a quaint counterpoint to a courtroom otherwise determinedly modern and festooned with the latest technology.

In the American TV shows and movies that influence our image of courtrooms, the witness is seated in a raised box to the side of the judge. Quebec courtrooms maintain traditions that date from pre-Napoleonic French law, and the witness and presenting lawyers stand facing the judge with their backs to the court. Witnesses who testify all day (or for several days) are required to remain standing, unless given permission by the judge to sit. So too do the lawyers remain standing as they examine the witnesses or present arguments to the bench.

One of the disadvantages of this arrangement is that those who watch from the back of the room have difficulty seeing and hearing what is going on. (Only after complaints from the media was a microphone brought in to amplify the witnesses’ testimony.)

The first order of business was to shuffle the calendar to manage an apparent challenge to the subpoena of one witness, who was ordered to return to the court on April 2, subject to a decision of the Appeal Court. The second order of business was to order that all future witnesses to the trial be excluded from the court-room and, it would appear from the judge's remarks, to also refrain from reading certain trial documents.

But the real order of business was the first day of testimony of Mr. Michel Descôteaux, the former public relations chief for Imperial Tobacco.

A one-company man

In response to the questions of Bruce Johnston (Trudel and Johnston), Michel Descoteaux detailed a professional life spent entirely in the service of one company. He started working for ITL in 1965 (at the age of 18), processing insurance files, but was moved into public relations in 1967-68 and was quickly promoted. By the time he was 35 he was director of Public Affairs, a position he occupied until 2000 (and shared with his successor until 2002). His educational qualifications were acquired at night school at the University of Montreal. For 21 years, he was in effect the only spokesperson for Imperial Tobacco (other than senior officers), as well as being the company’s representative at the industry association, the Canadian Tobacco Manufacturers Council. He retired in 2002 to what he described as a pleasant retirement, one where he did not have to get up any earlier than he wanted.

After establishing Mr. Descôteaux professional work experience, Mr. Johnston turned the discussion to the experience of Mr. Descôteaux in communicating Imperial Tobacco’s position or policy on any of the risks associated with smoking cigarettes. His questions were of the order: “How were press releases processed?” “Were you involved in setting the companies’ position about smoking and health?” “Were the companies free to arrive at a policy different than BAT?” “Why didn’t you just ask the scientists ‘what’s the truth on smoking and health so we can tell our employees?’” “Is it fair to say no scientists were involved in deciding what to say about smoking and health?”

It might be expected that after 30 years of working in public relations for one of the most controversial industries, Mr. Descôteaux would be accustomed to answering (or not answering) difficult questions. Certainly at times his answers were challenged as being inconsistent with some views he had expressed in trial documents. His statement that Imperial Tobacco was “very strongly independent from BAT” was contrasted by Mr. Johnston with a confidential memo Mr. Descôteaux wrote to his boss, Jean-Louis Mercier, in July 1979 to encourage a proactive communication campaign with company employees (factory and sales staff) about smoking and health issues. (Exhibit1) The memo suggested that BAT’s approval would have to be sought first. 

“Il va sans dire que nous devrons nous assurer que leur contenu sera conforme aux politiques internationales de l'industrie. A cette fin, nous pourrions, si nécessaire, les soumettre a B.A.T. aux fins d'approbation avant de procéder a leur impression”

(It goes without saying that we must make sure that the content is consistent with the industry’s international policy. For this we could, if necessary, submit them for BAT’s approval before proceeding).

“I realize that it sounds contradictory to what I have said before,” acknowledged Mr. Descôteaux. It would appear even Justice Riordan acknowledged the difficult position of the witness, as he offered “we often regret what we write. As a judge I can attest to that.”

Similarly, Mr  Descôteaux’s statement that he took his lead on smoking and health issues from the company scientists (“I had access to people with special knowledge - I never doubted what they said.”) was contrasted with comments he made in 1981 to BAT scientist Bob Gibb that suggested a more active role in influencing communications about science. In response to a proposed company statement to support medical advice against smoking when pregnant, Mr. Descôteaux wrote: (Exhibit 2)

“I am amazed that BAT would agree with the advice of doctors concerning pregnant women. I would suggest here that they word their paragraph somewhat differently along the following lines: "Nevertheless, in the absence of definitive answers to the question, many doctors advise their pregnant patients to modify their smoking habits pregnancy as a sensible part of prenatal behaviour not unlike the advised reduction in alcohol consumption or in the use of non prescribed medicine." BAT's agreement could open the door to claims for warnings on cigarette packages, for example, and has very important implications in the passive smoking debate.

Mr. Descôteaux’s own views on smoking and health were sought (over the objections of ITL’s Counsel Deborah Glendinning). He said his own attitude had evolved over time, as the company’s had. The corporate view stated in the late 1960s “There is no proof that tobacco smoking causes human disease” (Exhibit 3) remained unchanged until 2000 when the President decided to take a different approach when appearing before a Senate Committee. When the company president changed his mind, so did Mr. Descoteaux.

Controlling the message

The storylines that emerge when a skilled lawyer questions a skilled messenger might be expected to contain what someone in Mr. Descôteaux’s former position might describe as “differences of nuance.” But Mr. Johnston and Mr. Descôteaux were not the only two working to establish what the court would or would not hear about these events. ITL's lawyer Ms. Glendenning (Osler Harkin and Harcourt) offered several objections to Mr. Johnston's questions and to the submission of certain documents.

On only one occasion was she successful at changing the narrative. When tangentially answering a question about of the practice of lawyer’s reviewing documents prior to their destruction or retention, Mr. Descôteaux began an anecdote about his exchange with a “young lady” from a law firm who was reviewing his files. Ms. Glendenning quickly rose to her feet to prevent the man who was once in charge of corporate communications from finishing his story. Mr. Descôteaux didn't immediately 'get the message', and she had to object a second time before it was clear that he wouldn't be able to finish his story.