Tobacco Documents Online

168 NEIL COLLISHAW (for the Applicant) Examination by Me Irving I0 2O 3O 4O evidence gathering in the question or are you talking about lawyers in the.Department of Justice preparing a defense against the attack on the legislation? BY MAITRE IRVING: No, I'm talking about evidence gathering. A. I'm in your hands. BY MAITRE BAKER: It's not so much that you're in... Off the record. DISCUSSION OFF RECORD BY MAITRE IRVING: Q. Are you aware, Mr. Collishaw, whether at any time since July 20th when the Rothmans statement of claims was issued, anyone in the Department of Justice has been engaged in evidence gathering in respect to that case? A. I'm not aware that the lawyers who are working on the Rothmans case were engaged in evidence gathering during the months of July and August. I know they had been assigned the case and that we had.., during August, I believe, we had one meeting with those folks, and then early in September, another. But I don't recall that during that period they got specifically involved in evidence gathering, which I'm interpreting as recruiting expert witnesses. Q. But is it fair to say you're not sure? A. I'm not completely sure, but mostly from what they were doing I'm led to believe that most of the work involved that they were doing would have been in preparing the statement of defense. Q. In Paragraph 4 of your affidavit you say that commencing at the end of August 1988 you took steps to recruit experts in the medical field and in the field of advertising. A. Yes.

169 NEIL COLLISHAW (for the Applicant) Examination by Me Irving i0 2O 3O 4O Q. Do I take it from that that prior to the end of August 1988 you had not taken any steps in that connection? A. That's correct. Q. And are the "d6marches" referred to in Paragraph 4 those which are set out more specifically in the paragraphs which follow? A. No, those ones that follow you'll see were in the month of September. In August, really what I was doing was collecting my own thoughts, after having spoken to the lawyers in Toronto working on the Rothmans case, as to what sort of people we should be thinking about recruiting, and starting to compose categories of people and putting names to the categories of people that we could possibly look at. The work in August didn't go much beyond that organization level of my own work. Q. So then am I correct in thinking that the first efforts which you made in connection with this present case are those referred to in Paragraph 5 of your affidavit which refers to the period from the ist to the 15th of September? A. Yes. Well, I think that's natural since the case wasn't filed in September. Q. Now, as we are all aware, one of the issues in this case is advertising and the effect of advertising. Mr. Collishaw, were you made aware of an opinion which was furnished by the Department of Justice sometime in 1985 by a Mr. Martin Lowe, which I am about to show you? BY MAITRE BAKER: May I see that please? What is the question? Are you made aware... BY MAITRE IRVING: Was Mr. Collishaw made aware at any time of an opinion which was written sometime in 1985 by Mr. Martin Lowe of the Department of Justice with respect to proposed legislation banning advertising of tobacco products?

170 NEIL COLLISHAW (for the Applicant) Examination by Me Irving i0 2O 3O 4O BY MAITRE BAKER: I object to the question on the following grounds. Number i: Whether or not Mr. Collishaw was made aware of an opinion by a Justice Department counsel in 1985 is completely irrelevant to the issue of this proceeding. Number 2: Mr. Collishaw would be prevented from discussing the letter under The Official Secrets Act. BY MAITRE IRVING: Is that meant to be serious? Q. Mr. Collishaw, were you present in Parliament on the 28th of January 1988 when that letter was in fact read out in public? A. That particular letter? Yes, I was, and there were... I don't think the letter was read out in its entirety. Maybe, perhaps it was. Q. I would ask, Mr. Baker, if you would kindly look at Hansard for that day and tell me if you still persist in suggesting that this is protected by The Official Secrets Act. BY MAITRE BAKER: What page of this document? BY MAITRE IRVING: Well, if we look at page 24, column 32, there is the follwing: I'm reading now from Hansard. "BY MR. SPEYER: I understand there are two legal opinions. I only have a copy of one legal opinion from the Department of Justice. That is the one that was written by D. Martin Lowe. It was written in 1985. It is the one I asked you certain questions about the last time you appeared. On page

171 NEIL COLLISHAW (for the Applicant) Examination by Me Irving i0 2O 3O 4O 5 of that opinion Mr. Lowe, who gives most of the opinions, as far as I know, on constitutions matters for the government in the Department of Justice, said this: 'On the assumption that commercial speech is protected by the Charter, I am of the opinion that a complete ban on tobacco advertising raises significant Charter concerns. Key to a determination on the validity of a ban is the existence or absence of a correlation between tobacco advertising and use.'" BY MAITRE BAKER: I understand you are reading from Hansard, Mr. Irving. What is the point that you are making? BY MAITRE IRVING: If you will let me ask the question I think you will see it. Q. Now, Mr. Collishaw, let me just show you that extract I was reading from. I think the records shows you were present, in fact, that day. A. Yes. Q. Do you recall that? A. Yes, very well. Q. Now, let me show you the rest of the letter. Let me ask as a first question, Mr. Collishaw: Was that news to you or were you aware of the Martin Lowe letter long before January 19887 A. I was aware of it, yes. Q. In fact, you had seen it? A. Yes. Q. In 19857 A. Yes. Q. Now, I want to read one small extract from taht letter which is this and this is from the Lowe letter.

172 NEIL COLLISHAW (for the Applicant) Examination by Me Irving i0 2O 3O 4O BY MAITRE BAKER: Excuse me, Mr. Irving, does the issue of a letter relate in any way to anything you see in Mr. Collishaw's affidavit? BY MAITRE IRVING: Yes. BY MAITRE BAKER: Could you please point to that part of the affidavit on which you are testing his veracity. BY MAITRE IRVING: I'm not testing his... On this issue, Mr. Baker, I'm going to ask what was done by the Department prior to the enactment of the Bill in connection with one of the matters referred to in here. I will give the question and if you object to it, you can object to it. But let me put the question. Q. My question is this: I direct you~ attention, Mr. Collishaw, to an extract from the Martin Lowe letter, which is on page 4, which says this: "In response to my memo of June 7, 1985 requesting the reasons for extending the advertising ban, I was advised that the purpose was purely symbolic. I was also advised that there is no conclusive evidence indicating that a ban on tobacco advertising reduces smoking. Your information was that, in fact, studies show that advertising probably affects market shares between brands." Now, the question, and the only question I have, Mr. Collishaw, is between whenever in 1985 it was

173 NEIL COLLISHAW (for the Applicant) Examination by Me Irving I0 2O 3O 4O that this letter was written -- and I tell you, I don't have page 1 because it was refused under the Access to Information -- between 1985 and 1988 when this Bill was passed, did your Department, to your knowledge, carry out any further empirical studies in an effort to show a correlation between advertising and the use of tobacco? BY MAITRE BAKER: I object to the question insofar as it is wholly unrelated to the affidavit of Mr. Collishaw which is filed in support of an application for leave to appeal a Decision which sets Trial date of these issues for the 14th of November 1988. What the Department may or may not have done in respect of its research in the three- year period prior to the proclamation of the statute is irrelevant for the purposes of this Examination and it certainly has nothing to do with the affidavit. BY MAITRE IRVING: Do you direct the witness not to answer the question? BY MAITRE BAKER: Yes. BY MAITRE IRVING: Thank you. Q. Now, Mr. Collishaw, I want to show you a document which is entitled "Review of Psychosocial Determinants of Smoking Behaviour", and my first question is: Have you seen that study before? A. No, I have not. Q. Are you familiar with the Alcohol, Tobacco and Risk Assessment Unit, the Health Promotion Director of Health and Welfare Canada? A. I don't believe that's a unit that exists anymore. Q. But it did exist in 1981, did it not?

174 NEIL COLLISHAW (for the Applicant) Examination by Me Irving i0 2O 3O 4O io it did or not. Q. A. Q. A. Q. Well, I actually can't remember whether I see that it's described there. Yes. I would expect it probably did. But you've never seen or read... Never saw it before, no. Let me show you another study which is called "Evaluation of the Health Promotion Directorate Media Campaigns", "Breakfree - Dialogue on Drinking", "Stay Real 1986" and ask you if you have seen that one before. A. I don't recall seeing that one before, no. Q. Have you been involved at all with the Breakfree campaign or any of the media campaigns to dis- courage smoking? A. Those don't fall under the direct responsibilities of the Tocacco Products Unit. There is a division of responsibility in Health and Welfare in matters pertaining to the product itself. Legislation, liaisonwith the tobacco industry fall within the Tobacco Products Unit. The promotional and educational side are in another branch, in the Health Services and Promotion Branch, and of course, there is excellent liaison and co-operation and collaboration between the two groups, but it still the case, obviously, that I'm not perfectly aware of everything that goes on in the Health Promotion Branch, Health Services and Promotion Branch. Q. Nobody ever brought this particular study to your attention with specific reference to what is said in it on the effects of advertising on changing people's behaviour? A. No. Q. Now, I want to show you a part of a commentary which I think was written by you, which is entitled "Application to Regulate Tobacco Products Under the Hazardous Products Act by Physicians for a Smoke-Free Canada", and I want to direct your attention to the first page of that study, at the bottom beginning in Part III. If you would just take a look at that.

175 NEIL COLLISHAW (for the Applicant) Examination by Me Irving i0 2O 3O 4O BY MAITRE BAKER: Mr. Irving, you are showing the witness a document which he either authored completely or co-authored... BY MAITRE IRVING: I'm about to ask. BY MAITRE BAKER: I beg your pardon? BY MAITRE IRVING: I'm about to ask. BY MAITRE BAKER: You were about to ask the witness a question in connection with that document, and I object to the question on the basis that it has absolutely nothing to do with the affidavit on which you are conducting an Examination which is in support of an application for leave to appeal, the basis of w~ich is the Attorney General has simply not had the time to assemble the necessary expert witnesses to defend itself. You are attempting to conduct another kind of the an Examination to determine what information Mr. COllishaw has in his head with respect to the industry generally -- tobacco and health -- and I submit to the Court that it is an inappropriate time and an inappropriate forum to be putting such questions to the witness. For the purpose of the Examination, the transcript of which will in theory be placed before the Court of Appeal tomorrow, the question is completely... or the document and the question are completely irrelevant. BY MAITRE IRVING: Would you like to hear the question before you state that?

176 NEIL COLLISHAW (for the Applicant) Examination by Me Irving i0 2O 3O 4O BY MAITRE BAKER: Any conceivable question on the document, which was written some years ago, cannot be relevant to the issues which only begun with the issuance of the two proceedings before us in August and September of 1988. BY MAITRE IRVING: Q. My questions, Mr. Collishaw, are these: First of all, did you write this document? A. I honestly do not recall writing it, but I've written a lot of things in the last few years. I see my name on here, and as I read it, it looks like something I could have written all right. Q. Well, I would like you in preparation for this question to which your counsel is going to object, I would ask you to read the paragraph beginning at the bottom of the first page. It has to do with Norway. BY MAITRE BAKER: Do you have a question? BY MAITRE IRVING: Yes. Q. Now, having read that, Mr. Collishaw, let me read one part of it to you. It says this, and I'm quoting. In Part III- 5(f), which is a reference to a document filed by a group called Physicians for A Smoke-Free Canada. In Part III- 5(f): "data on smoking among Norwegian youth before and after the institution of a legislated smoking ban in 1975 are cited. However, the changes cited are based on small samples of a rather narrow age range (13-15) of adolescents. In 1984, 27% of Norwegian boys and 22% of Norwegian girls aged 16-20 reported smoking daily. In the same

177 NEIL COLLISHAW (for the Applicant) Examination by Me Irving i0 2O 3O 4O year 24% of Canadian boys and 25% of Canadian girls aged 12-19 reported daily smoking. Annual per capita consumption of tobacco did not change markedly from the 1950's in Norway until 1980 when the price was increased substantially through taxation." My question, my preliminary question, Mr. Collishaw, is: Are those figures in that conclusion that consumption in Norway did not change markedly from the 1950s until 1980, did that result from research you had done yourself on the effect of the advertising ban in Norway, or other research on the situation in Norway? And then since you lawyer is going to object, I will put the second question so you may have both of them. And the next question would be... I'm going to have to ask for an answer to that question first. BY MAITRE BAKER: I will reiterate the objection that I made in anticipation of the question on the document, and I will go further - that given the guise.., off the record. DISCUSSION OFF RECORD BY MAITRE BAKER: I will continue the objection for the record. I will have the Reporter repeat the objection in its entirely and in its form which I made prior to the question being asked in anticipation of a question being asked on a document that had previously appears to have been written by Mr. Collishaw, but I particularly object to the question in relation to things that Mr. Collishaw may or may not have written earlier, given that the guise under which this Examination is being held today is as a consequence of an affidavit being filed yesterday, and it is simply to support an Interlocutory proceeding presently before the Court of Appeal which is going to be heard tomorrow. This is not an Examination on Discovery. Mr. Irving knows