Day 192: It was a long row to hoe

It was a mercifully short day at the Montreal tobacco trials. The testimony of former Agriculture Canada researcher Bryan Zilkey ended at noon -- with nary one question in cross-examination by the plaintiffs nor a question for clarification from the judge.

It was as she neared the end of her multi-day presentation of the government's less hazardous program that Imperial Tobacco counsel Valerie Dyer reassured the court that she was "on the exit ramp."  Perhaps she was, after all, aware of the impatience of those backed up behind her, who had idled for days while she pursued her idiosyncratically high-detail/low-content questions.

Leading on

In a now familiar pattern, on only a few occasions was Mr. Zilkey given a question that did not presuppose a "yes" answer, and even less often one that required an explanation.

Justice Riordan and Ms. Dyer have had a few exchanges on the upsides (efficiency) and downsides (less 'probative value') of her singular ability to ask leading questions.  Yesterday, the judge acknowledged that the aim of confirming the content of documents was "aided greatly by the suggestiveness of the questions." He thanked the plaintiffs for not objecting to them. Anything to make it end sooner?

There were eye-rolling moments. For example, Mr. Zilkey had written in 1973 that many smokers "are unable to quit smoking because they are habituated or addicted to smoke." (Exhibit 20966 – 1973) Ms. Dyer -- whose clients' position on addiction continues to nuance around the distinction between a medical definition of addiction and the popular understanding of what it means -- asked Mr. Zilkey: "Are you trained in psychiatry or psychology in order to give an expert opinion? Are you using i[the term addiction] in the layman sense?" Lo and behold! Mr. Zilkey agreed that he was using addiction in the popular culture sense that have embedded in their defence.

A public service? 

Despite the tedium of the experience, there is much of interest in the material that Ms. Dyer put on the public record over the past few weeks.

No-one else has compiled such a detailed dossier on the federal government's ham-fisted early efforts at harm reduction. No one else has assembled the raw material that would allow an analysis of whether this was a massive policy failure or just a sad sign of the times.

It seems unlikely that there will be a judge with the mandate to investigate what went wrong with tobacco regulation at Health Canada. No equivalent to the Krever inquiry on tainted blood, for example. But thanks to Imperial Tobacco's efforts, we now have a few thousand documents on the record that can serve less official evaluations.

Those with the stomach for disappointment can read an illustrative example of the material shown today - a memo explaining the government's thinking that was written in 1975 by Harold Colburn, the man in charge of the file at Health and Welfare Canada. Exhibit 40347.59

Other documents discussed today were those in which the mandate of the government's approach was developed and refined, (i.e. Exhibit 20800.2), those that recorded meetings held between Agriculture Canada and Health and Welfare Canada (i.e. Exhibit 40347.60), those which elaborated the program protocols (i.e. Exhibit 40347.71) and those which detailed the discussions of the scientists involved. (i.e. Exhibit 40348.23).

The federal government had a grand plan! "A system which extends from tobacco seed to smoking-related disease" that was developed to face "the reality of some six million Canadians continuing to smoke cigarettes regularly, i.e. every day. You may call it "Smokers' Rights" if you will, as compared to the current "Non-Smokers' Rights movement." (Exhibit 40347.59)

But today Mr. Zilkey barely mentioned smokers or disease. Instead, his focus remained on farmers. Tellingly, he cited as an accomplishment of the first round of research he conducted to be the fact that artificial tobacco had been found to be no less harmful than real tobacco. No reason to shift away from good old Canadian-grown tobacco. "The farmers particularly would have been interested in that."

No regrets

Nor did Mr. Zilkey express any doubts about his decades of work on tobacco for the federal government. Those quibbles he did express were reserved for the decisions of Health Canada to end its subsidy for Agriculture Canada research. This decision he blames for the plug being pulled on the bio-assay tests that he wanted to run on various tobacco components ($300,000 per test!). Perhaps Agriculture Canada had no money of its own.

So, without the Health Ministry's involvement, Agriculture Canada continued on its own to discover new varieties of tobacco that produced higher levels of nicotine.

"We went on with our concept of a reduced tar to nicotine ratio tobacco ... eventually that research developed the varieties that went to the farming community that actually produced higher nicotine tobacco. That material was picked up by the manufacturers and I am sure by using their technology and blending technologies, they were capable of producing in their own way for the market a less hazardous cigarette." 

And on other fronts

We learned yesterday and today that Dr. Burns will be providing an additional expert report to respond to the critiques of Mr. Dixon and others. The defence teams will look at this report (due at the end of the month) before deciding whether they want to exercise their right of rebuttal.

Tomorrow, we will hear memories from the other side. Mr. Bert Liston, the former Assistant Deputy Minister for Health Canada's Health Protection Branch will testify.

Day 191: A safer cigarette that no one would smoke? "The industry would fall apart."

Today the Montreal Tobacco Trials heard from Bryan Zilkey, the "third man" of Imperial Tobacco's triumvirate of witnesses who once worked at Agriculture Canada's Delhi Research Station.

Like Frank Marks and Wade Johnson, the two biologists who testified last week, Mr. Zilkey was a fully qualified (PhD) biologist who became an Agriculture Canada scientist and who ended up spending a good part of his professional life working on tobacco issues. His work on tobacco - from 1969 to 1994 - coincided with that of these two other witnesses.

Today was a Yogi Berra -- déjà vu all over again - moment. In her brusque headmistress style, Ms. Valerie Dyer asked Mr. Zilkey to move back and forth from one book of exhibits to another, drawing his attention to certain words, eliciting his agreement, and then rushing him to another document.

Mid-day, she described her process as a "Cook's tour" -- and indeed it had the hallmarks of a pre-packaged itinerary that was designed to maximize the volume and not the quality of the experience. Like a cheap packaged holiday, the content often disappointed.

As she had with Mr. Marks last week, Ms. Dyer seemed to encourage her witness to provide unimportant, self-evident or even trivial information about the events that lay behind the government's records. Had the meeting taken place before and after lunch?  Did he remember that the Montreal meeting was in October 1970 because there were soldiers on the street? Can he describe the building they were working in? What? No lunchroom?! 

Last week, such tangential questions seemed to be a benign way for Ms. Dyer to get her witness to talk about a document without really saying anything about it. That is, she was using his presence as a witness to vouchsafe for the documents she wanted to be part of the trial record, but making sure to minimize the risk of his saying unhelpful things.

But such an exercise was not needed today -- the documents shown to Mr. Zilkey were already trial exhibits. His comments were not required. "You really don't need to do it," Justice Riordan pointed out.

Ms. Dyer did not change her style. Last week I gathered the impression that Ms. Dyer's task was to put the documentary evidence of the government's actions on the trial record in a way that was unencumbered by the issues that they have complained about to Justice Riordan with respect to the "plaintiff's proof" and will likely complain about in any appeals. That is, they want to benefit from "2870" documents (those entered without alive witness) while also complaining about the plaintiffs being able to use this mechanism. Well, that's my guess anyway.

A farmer's advocate

Brian Zilkey in Simcoe

Even in a dark suit, Mr. Zilkey looks like a tobacco farmer. (I have met a few.).

From his comments today, he seemed to have a genuine affinity for the farming community. He spoke of his work at Agriculture Canada as being in their service.

Tobacco sales had "a huge economic impact to the tobacco farmers and the industry -- and of course we were there to look after the farmers."

His definition of a "reasonable" compromise on a research agenda to find safer cigarettes was one which met farmers' needs. He had been concerned that the Health Ministry could pass a law imposing tar and nicotine standards that would harm farm incomes. What was needed was "something that the companies can produce - so that farmers get their income from it."

Good and not-so good views of the industry

As the other Agriculture Canada witnesses had done, Mr. Zilkey spoke warmly about his relationship with the companies. "We had a very good relationship with them - a very cooperative relationship. We didn’t have any problems." He paused and then qualified his answer: "WE didn’t - or I didn’t."

He acknowledged that his Health Canada colleagues had concerns about the manufacturers that he had not shared. Mr. Colburn (who worked on tobacco at Health Canada during the same period), cautioned that the government "should not rely on the cigarette manufacturers to carry out all the research or provide essential information about possible improvements in cigarettes.” (Exhibit 40249)

"That was a Health and Welfare view," Mr. Zilkey said today. "I don’t think we would have made a statement like that."

Another view he did not share with the Health department was the idea that the goal of the program should be to produce tobacco with "the least likelihood of being inhaled into the lungs." Mr. Zilkey explained that this concept came from the Health department, but that only "social smokers" do not inhale. "A regular smoker intends to inhale." 

Nor did the Agriculture department share any interest in the use of tobacco substitutes, like cytrel. From a farmers' perspective "if there were going to use sheet, they would want it to be made from the tobacco plant."

The government as tobacco manufacturer

There seems little disagreement within this courtroom that the departments that are now known as Agriculture Canada and Health Canada worked together for a short period in the 1970s on a "less hazardous cigarette program" that aimed to reduce the tar levels or harmfulness of cigarettes by tinkering with the tobacco plant before it was cut up and made into cigarettes.

The reams of documents recently introduced elaborate the story-line of Imperial Tobacco's third-party or action in warranty claims against the government. (See, for example, paragraph 16 of its motion in the Létourneau case). More than a few of the images shown on the overhead screens today seemed aimed at reinforcing the argument that the government was a manufacturer.

If so, it was small scale! The cigarette-making machine that Mr. Zilkey was asked to describe looks tiny to me.

Agriculture Canada -
The Lighter 1971

Mr. Zilkey was able to add some colour and detail to that story line. Sadly, many of the documents shown this month are not yet available, but those that are also on the Legacy Website give a flavour of this 40-year old story. (i.e. Exhibit 20706.4)

Mr. Zilkey attended a lot of meeting. (This was government!). Ms. Dyer did not draw attention the fact that these meetings - and the work that they led to - were not known to smokers or the taxpayers that funded them. "It was agreed that no information on joint projects and meetings would be released without consultation with the other participants."

She did invite Mr. Zilkey to confirm that the government and industry officials who worked together on the program understood the phenomenon of compensation.

His answers to her questions revealed his own understanding of addiction. "Habitual smokers" would be more likely to adjust the way they smoke when moving to lower tar blends. "They are more addicted to smoking and to alkaloid and so they might make compensation either by smoking more cigarettes or a shorter butt length."

Well, that's another way to look at it.

One of repeated themes in the defence portion of this trial is the importance of ensuring that any product designs that might make cigarettes safer are acceptable to smokers. As the answer is often given, the alternative is that smokers will reject the cigarettes and no benefit is achieved.

Mr. Zilkey's answer made me laugh, and I think I saw Justice Riordan grinning as he typed it down.

"What would happen to a safer cigarette that smokers wouldn’t smoke – would it be a safer cigarette?"
"The industry would fall apart. You couldn’t support the producing industry and to some extent the manufacturing industry based on the concept."

Mr. Zilkey's testimony is expected to end tomorrow. On Wednesday and Thursday, the last government witness for the defence - Mr. Bert Liston.