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.
