Tobacco Documents Online

258 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Irving I0 2O 3O 4O let me show you again RJR-4 which has been produced, and draw your attention to the paragraph in which you refer to "Market and Social Science Research", and where you say, for instance: "Market and social science research in any national tobacco consumption trends, including that by Boddewyn..." and I leave out some words: "... and ourselves, Rogers, Meyers and Collishaw, offer no compelling evidence." Is that the document to which you refer in this Exhibit 4? A. This document that begins on page 11754 actually contains three scientific papers that were presented at the same conference... Q. Yes. A .... and the one to which we refer there is the one that begins on page 11758 and carries on to 11760. Q. Okay. Now, is it a matter of practice within the department that where a paper, such as this which we are now looking at, is to be presented, that it must be cleared by the department first? A. It is - I receive authorization from my superiors before presenting such a paper. Q. And so I take it then that you received such authorization before you presented... A. Yes. Q .... the document before us now, which is RJR(Reserved)-10? A. Yes. Q. Now I just wanted to look with you, for a moment, at page 11762. A. Yes. You'll note that that's the third paper... Q. Yes. A .... Not th@ one that was referred to in that briefing that we are discussing. Q. No, I appreciate that. There is a table on that page...

259 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Irving i0 2O 3O 4O A. Yes. Q. Titled "Tobacco Consumption (inaudible) per adult 15 and over, in seven countries, 1950 to 1984"? A. Yes. Q. And it goes as far as 1986 - no, 1984. A. Yes. Q. Inthose countries. My question, Mr. Collishaw, was whether you had,as between then and now, completed that table? A. No, I haven't. BY Mr. COLIN IRVING: Thank you. I think we might take a few minutes now, if you don't mind. BY Mr. ROGER BAKER, Q.C.: Sure. RECESS BY Mr. COLIN IRVING: Q. Mr. Collishaw, in the course of your duties, have you been involved in discussions, or studies on the impact of American studies on the - impact of American cigarette advertising in Canada? A. I don't know whether we could call it "studies", but certainly it's an issue that I have considered. Q. Do you know what percentage of the total of media advertising for cigarettes in Canada is in fact contained in American magazines? A. At the moment it would be nearly all of it. Q. We!i, you are quite right. Prior to the introduction of Bill - prior to January the ist of this year, Mr. Collishaw, what percentage of the total would have been represented by American ads? A. I've seen figures of the order of 60 or to 66%. Q. Have you done any studies to validate that figure? A. The only thing... Q. Do you accept that figure as being correct?

260 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Irving i0 2O 30 40 A. It seems a reasonable figure to me, yes. Q. Do you know what percentage of the Canadian market for cigarettes is represented by American cigarettes now? A. Yes, it's less than 1%. Q. Do you know the highest point it ever reached in Canada? A. No, I don't know that offhand. Q. In your studies, were you not aware that at one time the percentage was at least i0%, if not higher? A. No. No. Q. You don't know. You are not aware of that? A. No. Q. Are you aware that the American cigarettes cost more in Canada than their Canadian equivalents? A. Yes. Q. I think we agreed earlier that you believe that price is an important determinant and... BY Mr. ROGER BAKER, Q.Co: No, we didn't agree on that. I object to that question and the speech on the subject, Mr. Irving. BY Mr. COLIN IRVING: Q. Do you believe, Mr. Collishaw, that price plays a role in the decision whether or not to buy cigarettes? BY Mr. ROGER BAKER, Q.C.: I object for the same reasons I objected earlier. The witness's opinions are not receivable; they are irrelevant. He is not an expert witness. BY Mr. COLIN IRVING: Q. Did your department do any studies to see what the potential result might be on banning Canada cigarette advertisements while at the same time permitting continued advertising in Canada by American compagnies of American brands through the international media?

261 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Irving i0 20 30 4O BY Mr. ROGER BAKER] Q.C.: Studies in connection with what? You didn't specify what kind of studies you are referring to. BY THE WITNESS: A. We - the issue was considered. BY Mr. COLIN IRVING: Q. In what way was it considered? A. We examined the situation with respect to the presence of American cigarette advertisements in Canada and the percentage of sales in Canada accounted for about (above?) American cigarettes accounted for in Canada. Q. And did you do any studies which would show whether the absence of Canadian cigarette advertising combined with the presence of American cigarette advertising have any effect on the level of sales of American cigarettes in Canada? Well, what is meant by "studies" in your question? Q. at all? A. Q. or other... A. Q. A. Q. A. Unit, no. Well, tell me then did you consider the matter The matter was considered, yes. Did you commission an econometric study, No, I did not. ... studies which might show... No, no such study... ... What had happened? ... was commissioned by our Tobacco Products Q. Short of making any studies, did you come to any conclusions about what might happen to the share of market held by American cigarettes in this country, where Canadian advertising was prohibited and American advertising was permitted? BY Mr. ROGER BAKER, Q.C.: When you say "you", do you mean Mr. Collishaw personally?

262 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Irving i0 20 30 40 BY Mr. COLIN IRVING: That's what it usually means. BY Mr. ROGER BAKER, Q.C.: I beg your pardon? BY Mr. COLIN IRVING: That's what it usually means. BY THE WITNESS: A. The conclusion, in looking at the situation in the light of the information that we had available, I concluded that it was unlikely that American cigarette sales would increase significantly in Canada. BY Mr. COLIN IRVING: Q. I see, and what information did you have available? A. The information which we've just discussed. In addition, I knew from discussions with representatives of tobacco companies that Canadians generally smoke flue cured cigarettes that are made from flue cured Virginia type tobacco, whereas American cigarettes are made from a blend of different kind of tobacco and they have quite a different taste and that, by a large, Canadians prefer the Canadian brands which have a different taste than American brands. Q. In your consideration of this matter, did you give any thought to your own comments, which we looked at earlier about the Denetration of American cigarettes in the French market, for example? A. Yes. Yes, that was another piece of information that was available. Q. And did you look at the consequences in countries were National advertising has been banned, to see whether in fact American and International brands took a greater share of the market following the ban? Ao That was also information that was available.

263 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Irving i0 2O 30 40 Qo Yes, and did you find that to be the case? Yes. BY Mr. ROGER BAKER, Q.C.: You are calling for an opinion and we will object on that basis, Mr. Irving. BY Mr. COLIN IRVING: I am asking the witness whether the department found in its studies that, having banned local advertising in the various countries in which it has been done, the result was that the American brands, international brands took a greater share of the market. BY Mr. ROGER BAKER, Q.C.: You just made reference to departmental studies; ask the witness if there are departmental earnings, Mr° Irving; don't ask the witness for his own opinions in respect to studies that may or may not have been consigned to writing, which would then properly be called "studies" BY Mr. COLIN IRVING: Q. Why don't you answer your counsel's question, Mr. Collishaw, is there such a study? Ao The department did not commission any such studies, no. Q. Apart from studies, did you simply obtain any statistics which showed the share of market of American cigarettes in say, Finland, or France, or Italy, or countries like that, in the period following an ad ban? A. I believe some such information was provided to us by the Canadian Tobacco Manufacturers' Council during that period. Q. Is there any other source that you can think of? A. Not offhand. I had other information on tobacco sales, from other countries, but I can't recall specific information on brand by brand sales. It was overall sales information. Q. At the time of the Parliamentary Commission

264 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Irving i0 2O 3O 4O hearings on Bill C-51, Mr. Collishaw, did you or your department bring forward for the consideration of the Committee any scientific studies, econometric or otherwise, on the impact of advertising on total consumption of cigarettes? BY Mr. ROGER BAKER, Q.C.: When you say "bring forward", what do you mean, Mr. Irving? BY Mr. COLIN IRVING: I think the witness understands it, Mr. Baker. BY Mr. ROGER BAKER, Q.C.: I certainly don't. I'd like you to be specific about what you mean by "bring forward" Do you mean "table" before committees? BY Mr. COLIN IRVING: Q. Did you present to the Committee, table to the Committee, make available to the attention of the Committee any studies of that kind? BY Mr. ROGER BAKER, Q.C.: When you say "you", do you mean the witness personally, or any representative of the Canadian Government? You and your people, or your clients and their counsel were at every one of those committee hearings, so what was made a public record then was accessible to you then as it is accessible to you now through Government offices. So why do you put the question to the witness in that form, Mr. Irving? BY Mr. COLIN IRVING: Are you objecting to the question or not?

265 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Irving !0 2O 3O 40 BY Mr. ROGER BAKER, Q.C.: I am objecting to the question on its form. It's a ridiculous question in the context. BY Mr. COLIN IRVING: Is the witness going to answer the question or not? BY Mr. ROGER BAKER, Q.C.: What's your question? BY Mr. COLIN IRVING: I think you heard it. (TO WITNESS): Q. Mr. Collishaw, do you know the question? BY Mr. ROGER BAKER, Q.C.: When you say "you", do you mean "you" meaning Mr. Collishaw or the Government of Canada and any of its witnesses? BY Mr. COLIN IRVING: Really, Mr. Baker... BY Mr. ROGER BAKER, Q.C.: Yes, I know it's getting tedious, Mr. Irving... BY Mr. COLIN IRVING: Q. Did you department - Mr. Collishaw, did you personally bring to the attention of the Parliamentary Commission any studies showing the effect of advertising on consumption? A. I don't recall that we laid any scientific reports before the Committee; I know the matter was discussed

266 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Irving i0 2O 3O 4O in Committee hearings by Mr. Epp on at least one occasion when he appeared before the Committee. Q. Did Mr. Epp not say that he would be bringing forward scientific studies for the consideration of the members of the Committee. A. I don't... BY Mr. ROGER BAKER, Q.C.: What Mr. Epp said is not subject to discussion by Mr. Collishaw; he either said something, or he didn't, Mr. Irving. BY Mr. COLIN IRVING: Q. Well, do you know if he said that, Mr. Collishaw? A. I don't recall, but we could certainly look at the Minutes of the Committee hearings and discover. Q. Didyouc department - has your department been involved in any studies in Canada, to start with, on the factors which induce people to beging smoking? A. Certainly not - no such studies have been commissioned from the Tobacco Products Unit. However, there may be such studies that have been undertaken by my colleagues in the Health Promotion Branch, or there may be such studies that have been funded as research projects through our research funding organization. Q. Uh-huh. Are you aware in fact, Mr. Collishaw, that there have been studies done by the Health Promotion Directorate, looking at that very issue, such as that, for example, prepared by Karen Bell (sic), which I'm showing you? A. That particular one is not one I've seen before, but it is the sort of thing that they may well have prepared, yes. Q. Are you familiar with the conclusions which have been reached in studies such as that of Karen Bell and the various other ones which have been done? A. Well, since I haven't seen... BY Mr. ROGER BAKER, Q.C.: He just said he is not familiar with the studies, so how can he know What the conclusions are, Mr. Irving.

267 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Irving i0 2O 3O 40 BY Mr. COLIN IRVING: Q. Let me suggest to you, Mr. Collishaw, that a great number of governmental studies have shown that the inf!uenceswhich induce children to begin smoking - people to take up smoking are parental example, sibling influence, peer pressure; are you familiar with any studies which come to that conclusion? A. Yes. Q. Wouldn't you agree that in fact the overwhelming weight of the scientific research on the subject is exactly to that effect? BY Mr. ROGER BAKER, Q.C.: We will object to that question, Mr. Irving; it calls for a conclusion and opinion of the witness who is not an expert witness. BY Mr. COLIN IRVING: Q. Uh-huh. Would you, through your counsel, Mr. Collishaw, be prepared to give an undertaking that you will be testifying as a witness at the Trial of this action? BY Mr. ROGER BAKER, Q.C.: Well! BY Mr. COLING IRVING: It was one of the questions from your learned counsel in an earlier discovery. BY Mr. ROGER BAKER, Q.C.: If your question is put in the sense of assuring Mr. Collishaw's presence at the hearing, without benefit of subpoena, we can undertake to produce Mr. Collishaw at the hearing. With respect to our Trial plans, I am not prepared

268 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Irving & Me Cherniak i0 20 30 40 to give you any undertaking, or making any disclosure to you at this time, as I did not ask you with Mr. Holt. BY Mr. COLIN IRVING: I see. BY Mr. ROGER BAKER, Q.C.: If you just wanted his body there without a subpoena, is all we are prepared to... BY Mr. COLIN IRVING: I now yield the floor to my learned senior; I'm a perpetual member of the junior Bar, myself. CROSS-EXAMINATION BY Mr. EARL CHERNIAK, Q.C.: Q. Mr. Collishaw, I'm going to ask you a few questions that relate to the comparison of U.S. brands of cigarettes and Canadian brands of cigarettes. Have you, or anyone in your department, I mean the Department of Health and Welfare, whether the one you are in charge of or otherwise, made any comparison of the content of Canadian brands of cigarettes versus American brands of the cigarettes? A. No. Q. Are you aware from your studies, or research, that there are differences in the make of Canadian brands of cigarettes and American brands of cigarettes? A. I am aware of that, but as I mentioned earlier, I am aware of it as a result of reading documents prepared by people who produce the cigarettes and by speaking to them. Q. Well, can you tell me what - and did you become aware of that as a part of your work for the Department of Health and Welfare? A. Yes, I did. Q. And, have you written, or are you aware of any documents, report, studies or the like in the Department of Health and Welfare that deal with those differences. A. There may well be documents that make reference to the differences.

269 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 20 30 40 Q. And were you personally involved in the production of any of those documents, or studies? A. Yes, I expect I was. Q. Can you list for me now which documents, or studies those are and point out to me the ones that you were personally involved in? A. No, I can't. I have a recollection of having written it down on - written down information pertaining to this point, but recalling a specific document is not something I can do at this moment. Q. Well, would you undertake then to provide me with a list of those documents and studies and copies of them? A. I could certainly look around and see what we can find regarding where that might be written down, yes. BY Mr. ROGER BAKER, Q.C.: Can I take it as a, just in general, not to you so much because I don't think you were in the Department of Health and Welfare, but as you know, your counsel in Montreal, Mr. Potter and his group, and Belobaba in Toronto, went through the Department and spent several days there and I take it from your question that you discovered no documents in connection with differences in the content of Canadian and U.S. cigarettes, Mr. Cherniak. BY Mr. EARL CHERNIAK, Q.Co: Well, I've just been told by the witness that there are some and that's what I want. BY Mr. ROGER BAKER, Q.C.: We'll make the undertaking to find for you, Mr. Cherniak. BY Mr. EARL CHERNIAK, Q.C.: Q. Now, can you help me with what you understand those differences to be? A. Sure. My understanding, most brands of Canadian cigarettes ace made from flue cured tobacco that's grown in Canada.

270 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 20 30 40 American cigarettes are made from a blend of flue cured burly (sic) tobaccos and other varieties that are grown in the United States and other countries. In addition, there is - flavour additives are apparently used more extensively in American cigarettes than in Canadian cigarettes. Q. And what about the use of something called "nitrosamines"? Are they involved in something called "nitrosamines"; is there any difference with respect to the content of cigarettes, or tobacco, between the United States and the Canadian brands? A. Nitrosamines are not - they are a constituent of chemical - a constituent of tobacco and tobacco smoke; they are not - they are not in the same class, I think, as - of variety of tobacco. Nitrosamines exist in all varieties of tobacco and they also exist in tobacco smoke. Q. But is there a difference in the production of nitrosamines between Canadian made cigarettes and American made cigarettes? BY Mr. ROGER BAKER, Q.C.: I am going to object to the question, Mr. Cherniak; Mr. Collishaw certainly has not contended, nor has been qualified as an expert in the contents of cigarettes and he has stated under oath today that he has not really done a detailed comparison of contents, the distinction of the contents between Canadian and American cigarettes; he has undertaken to produce documents of the department, if they exist, and he suspects they do exist, and for him to attempt - or for you to attempt to induce him into a discussion of chemical components of smoke and/or cigarettes calls for speculation, possible an opinion, which is improper, as earlier put and certainly unfair to the witness. If he going to be bringing documents to the table, or giving them to you, the answer will be contained in them by people who may or may not have been scientists, if they do those papers, but certainly Mr. Collishaw is not the person to be responding to those questions, Mr. Cherniak.

NEIL E. COLLISHAW (for the Respondent} Cross-examination by Me Cherniak i0 2O 30 4O BY Mr. EARL CHERNIAK, Q.C.: Well, but Mr. Collishaw is produced here as the representative of the Federal Government and I want to know whether there has been any studies done by - on behalf of the Federal Government through Mr. Collishaw... BY Mr. ROGER BAKER, Q.C.: He has answered that question. He thinks there have been; he can't think of them offhand and he has given you an undertaking to produce them. BY Mr. EARL CHERNIAK, Q.C.: Q. And, Mr. Collishaw, what have the studies that you are aware of, shown with respect to the differences in nicotine and tar content between the American brands and Canadian brands? BY Mr. ROGER BAKER, Q.C. : The question calls for speculation on the witness's part. If the studies, which are only discussed as a pure hypothesis because he is not sure that they exist, how can the man conceivably be asked to speculate on what the distinctions might be in documents that aren't on the table, Mr. Cherniak? BY Mr. EARL CHERNIAK, Q.C.: I'm not asking him to speculate. going to let him answer the question? Are you not BY Mr ROGER BAKER, Q.C.: That is correct. BY Mr. EARL CHERNIAK, Q.C.: Q. Do the studies differentiate between nicotine and the tar content of- between U.S. brands of cigarettes and Canadian brands of cigarettes.

272 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 20 30 40 BY Mr ROGER BAKER, Q.C.: I'll put the objection again, Mr. Cherniak, but I will add to the objection that if you were so interested in getting data from the Department of Health and Welfare in this discovery, having reviewed the documents that were already reviewable, by your own people, and not finding the data in them, knowing that there was going to be a discovery today, you simply might well have added to the subpoena that was originally sent and requested the studies. You have not done so, the witness has said that he is not even a hundred percent certain as to the existence of the documents; he's not done a comparison himself he has testified, so it's improper for you to be putting speculative questions to the witness of this nature. You'll get your answers if, as and when the documents are produced, if they exist. BY Mr. EARL CHERNIAK, Q.C.: Q. Has the Department of Health and Welfare, either by you or any other way that you would know of, done any studies, or produced any documents, or reviews on the health effects of more or less content of nicotine and the tar in cigarettes and tobacco? A. I don't think we have done any studies of that nature ourselves. However, such studies have been done by others and exist. Q. And have they been reviewed, collated, collected or commented upon by the Department of Health and Welfare? BY Mr. ROGER BAKER, Q.C.: Well, maybe you could break the question down. "Collated or commented upon" are... BY Mr. EARL CHERNIAK, Q.C.: Q. Either, any one of those - all or any one of those? A. Certainly I've reviewed many of these studies and reference may well be made in some of my writing,

273 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 3O 40 2O to some of those studies. Q. Yes. And what have you concluded? BY Mr. ROGER BAKER, Q.C.: Are you asking this witness, who is not a scientist and not a doctor, about what he has concluded on health studies produced by somebody else? BY Mr. Earl Cherniak, Q.c.: I am asking what he has concluded in writings that he has done himself and published, I presume, that's what he is speaking of. Because when he talks about writings, I presume that he is talking about the publications that he himself has made, either within the department or within learned journals. BY Mr. ROGER BAKER, Q.C.: Mr. Cherniak, whatever Mr. Collishaw may or may not have written in connection with health studies as they relate to the consumption of tobacco and health, would be a matter of his own personal opinion, having reviewed documents or studies from a field of which is not a member, he is not a doctor, nor is he a scientist, it would call for an opinion and, as such, I think the request of that opinion of this witness, who is not an expert, is objectionable and I will ask the - order the witness to resist responding to the question. BY Mr. EARL CHERNIAK, Q.C.: Q. Well, let's just find out whether or not, without knowing was the result was, whether or not in either reports, articles or other documents that you personally have prepared, you have come to any conclusion on the health effects of higher, or lower content of nicotine and tars in the tobacco products? BY Mr. ROGER BAKER, Q.C.: Given - I object, Mr. Cherniak, given that the man is not and expert, any conclusion that he may have come to is completely irrelevant.

274 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 2O 3O 4O BY Mr. EARL CHERNIAK, Q.C.: But my question only would be for the benefit of anyone that has to review this transcript, is whether he has indeed come to such a conclusion. I understand that you are not going to let him answer what it is; my question simply is: Have you indeed come to such conclusions, one way or the other? BY Mr. ROGER BAKER, Q.C.: But even if he had, one way or the other, Mr. Cherniak, that conclusion would not be pertinent or relevant. BY Mr. EARL CHERNIAK, Q.C.: Are you - well, you are not going to let the witness answer the question, is that what I understand? BY Mr. ROGER BAKER, Q.C.: That is correct. BY Mr. EARL CHERNIAK, Q.C.: Q. Mr. Collishaw, I have got a copy of an article that appeared in a journal called "Environment International", in 1987, it's called "A Study of Growth and Decay of Cigarette Smoke NO " - what does "NO " mean? x XA. Oxides of nitrogen. Q. Yes - "In Ambient Air Under Controlled Conditions" Were you one of the authors of that document? A. I was. Q. And what is Environment International Journal, to your knowledge, is that... A. A scientific journal. Q. Published where? A. I'm not sure; in the United States some place. Q. And before that article was submitted for publication, was it reviewed by your superiors within the Department of Health and Welfare? A. This one would have been reviewed by a couple

275 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 2O 30 40 of my peers and then reviewed and authorized by my superiors. Q. I see. And was there a comparison, as part of that study, for yields of NO being nitric oxide I take it? BY Mr. ROGER BAKER, Q.C.: Mr. Cherniak, I take it the document to which you make reference is not a document of the Department of Health and Welfare; do I assume correctly? If not, show it to the witness... BY Mr. EARL CHERNIAK, Q.C.: Well, the witness of course is described as one of the authors of the document and he is described in the document "N.E. Collishaw, Tobacco Products Unit, Environmental Health Centre, Health and Welfare, Canada, Ottawa, Ontario, KIA 0L2" (TO WITNESS): it Sir? Q. I take it that's your business address, is A. Was at the time. BY Mr. EARL CHERNIAK, Q.C.: Yes, and he has already told us that the document in question was reviewed by his peers within the department. (TO WITNESS): Q. Your peers within the department Sir? A. Yes, yes. BY Mr. EARL CHERNIAK, Q.C.: And it was reviewed by his superiors, I believe that combination, along with his description, I am suggesting that it makes it clear that it is relevant to the issues that we have.here.

276 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 2O 30 4O BY Mr. ROGER BAKER, Q.C.: That's not the issue, Mr. Cherniak. There are two kinds of documents that have been referred to today, as you know; those which were obtained by counsel to RJR-MacDonald through the Department of Justice, and your co-counsel, Mr. Irving, has attempted to introduce some documents which appear to have been written by Mr. Collishaw, which were obtained by you through periodicals and journals having nothing to do with the Department of Justice. For you to ask this witness to discuss a writing that he created in any form of question, Mr. Cherniak, is objectionable simply because what Mr. Collishaw may or may not have written is irrelevant; Mr. Collishaw is not testifying here, nor is he being cross-examined as an expert witness, notwithstanding that he has a considerable body of writing on a variety of subjects. That is number one. Second part of the objection is, for you to put a question to the witness as to the content of the document, as you know, is objectionable in its form; the document speaks for itself. Whatever it says, it says. Whatever is in there, is in there. If you try and produce it, I will object. You can call it a "reserve" document in the list of reserve documents and objections, if you wish. BY Mr. EARL CHERNIAK, Q.C.: I don't think it's necessary to go into a long harange Sir, are you going to refuse to let the witness answer the question? BY Mr. ROGER BAKER, Q.C.: Precisely. BY Mr. EARL CHERNIAK, Q.C. : Yes, thank you. Now, I would want to address a few questions, at least to the record, on this document.

277 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 20 30 4O (TO WITNESS): Q. Was there a study of yields of NO being, am I correct, nitric oxide? BY Mr. ROGER BAKER, Q.C.: I object. BY Mr. EARL CHERNIAK, Q.C.: I simply want to explain what "NO" means in his article. BY Mr. ROGER BAKER, Q.C.: I have told you that that article is not fair game in this discovery until there is a judicial order to that effect, Mr. Cherniak. BY Mr. EARL CHERNIAK, Q.C.: again. All right, you've made your objection; I'll start (TO WITNESS:) Q. On page399 of the article you've described Nitric Oxide as bein "NO" forthe rest of the article. At page 405 you indicate that there was a study of the yields of NO - nitric oxide - by thirteen brands of Canadian cigarettes, with the values reported for 32 grams of American cigarettes and you report that the yield in the Canadian cigarettes were on the average 86% lower than the American cigarettes. First of all, was that the result of your study? BY Mr ROGER BAKER, Q.C.: The document speaks for itself. If the document says that, it says that, Mr. Cherniak. But I repeat the objection and you may continue to putthe question and I am going to put repeatedly the same objection; it's

278 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 20 30 40 not open to you to ask questions of this witness on that document under the circumstances. BY Mr. EARL CHERNIAK, Q.C.: Q. Now, the document itself indicates that the nature of the experiment was that oxides of nitrogen in cigarette smoke were determined using a certain kind of an analyzer and it was what you described. Now, was the experiment done on the premises of Health and Welfare, Canada? BY Mr ROGER BAKER, Q.C.: Same objection. BY Mr. EARL CHERNIAK, Q.C.: Q. Has Health and Welfare Canada carried out experiments to compare the nitrogen oxide content of American and Canadian cigarettes respectively? A. We have done - we've had done experiments looking at the oxides of nitrogen in Canadian cigarettes; these results were compared to results reported for American cigarettes by another - the experiments were done by another researcher. Q. Well... A. And then we used the results from the American research in discussing our own results. Q. So what I'm being told is that Health and Welfare did testing on Canadian cigarettes and some other agency did testing on American cigarettes, is that,... A. Yes, as it's indicated here, there's a reference to... Q. When you say "here", you mean... A. On page 405 of the document, there's a reference to Jenkins (1983). Q. But the studies in question were two separate studies done for the same experiment, am I correct? A. We- Health and Welfare commissioned studies on oxides of nitrogen in Canadian cigarettes. In writing up the report, we referred to data from other study -

279 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 20 30 4O another study done independently on American cigarettes by another organization, completely a separate piece of work. Q. And in the study that was published in the Environment International, both those studies were used and compared; you understand my question? A. Yes. Q. Okay. And was it considered that the - that nitrous oxide content of cigarettes was a potential health hazard? BY Mr. ROGER BAKER, Q.C.: Was it considered by the researchers, or was it considered in the report, Mr. Cherniak? BY Mr. EARL CHERNIAK, Q.C.: Q. No, no, was it considered by Health and Welfare, Canada? Was that one of the reasons for the report being done in the first place? BY Mr. ROGER BAKER, Q.C.: Why didn't you ask the question that way: was the purpose of commissioning the report?" "What BY Mr. EARL CHERNIAK, Q.C.: That's what I just did. (TO WITNESS): Q. Was it considered - was the content of nitrous oxide deemed significant with respect to health issues? A. The nitrous oxide was - is not one of the principal things that's - not one of the principal oxides of nitrogen that's produced by tobacco smoke, rather it's nitric oxide and nitrogen dioxide are the two main ones that are produced by tobacco smoke and there are adverse health effects associated with both of its compounds. Q. And what you say at page 405 of the study is that increased levels of nitrows oxide are reported to result in increased nitrosamine formation and, therefore,

28O NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 20 30 40 that smoke from Canadian cigarettes could welldeliver appreciably smaller amounts of certain compounds, and you set one of them out by way of example; you see where I am referring? BY Mr. ROGER BAKER, Q.C.: That's a conclusion of the opinion of the writer of an article which we've objected to the production of an~ any questions on, Mr. Cherniak. I will allowed you to ask several questions because he is a representative of the department and what studies they may have commissioned and the purpose of those studies, I think, is fair game and not inappropriate information for you to have. But as to conclusions he himself reached in the paper which you have in your hands, which I don't have in front of me for the moment, I contend is a matter of opinion and this is not the witness to be the appropriate person to give such an opinion to the Court. BY Mr. EARL CHERNIAK, Q.C.: So I take it that you are refusing to let the witness answer the question? BY Mr. ROGER BAKER, Q.C.: That's corect. BY Mr. EARL CHERNIAK, Q.C.: Q. Now, was it the opinion of the Department of Health and Welfare following this experiment that you have referred to, that Canadian cigarettes could well deliver appreciably smaller amounts of certain compounds, such as that you set out at page 405 of the article. Is that the opinion of Health and Welfare Canada, or was it not? A. Well, I have difficulty knowing what the opinion of Health and Welfare might be. It was one of the conclusions the research team, including myself, reached in doing this work.

281 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 2O 3O 40 Q. And did such a conclusion - was it the view of Health and Welfare Canada that such a conclusion did or did not have health consequences? A. Sorry? Q. That a lower value - that lower values for nitrosamine formation or contentof nitrous oxide, was that favorable or unfavorable to the health of those who use the product? BY Mr. ROGER BAKER, Q.C.: Ask the witness - it would be appropriate for you to ask the witness whether the views of the department, if such an animal can really exist - are reflected, or the policy of the department is reflected in a document, or in a policy statement of the Department of Health and Welfare, Mr. Cherniak. BY Mr. EARL CHERNIAK, Q.C.: I may have to do that but I'd like an answer to the question I asked him first. BY THE WITNESS: A. In this study we examined oxides of nitrogen and it's difficult to come to any conclusion without the overall health effects and the relative health hazards of cigarettes based on such a study. The reason why I have such difficulty, or one of the reasons can be found if you look at page 400 of the document and you will see a statement that: "High concentrations of nitric oxide, or NO, are associated with reduced levels of polynuclear aromatic hydrocarbons in smoke and, consequently, a potential for reduced carcinogenic activity." - That's based on some earlier work by Rathcamp.

282 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 2O 30 4O "At the same time, an increase in tobacco smoke NO has been reported to lead to an increased production of nitrosamines..." and so on. So, there may well be, if levels of oxides of nitrogen, such as nitric oxide, are low, then levels of other known or suspected cancer causing agents in tobacco smoke, such as polynuclear aromatic hydrocarbons, may he higher. So, without a more extensive study, it's difficult to conclude - make conclusions about relative health hazards of Canadian cigarettes versus American cigarettes. BY Mr. EARL CHERNIAK, Q.C.: Q. But was the purpose of this study to gain information on that very subject? A. The purpose of this study was to gain information on the growth and decay of oxides of nitrogen in cigarette smoke in ambient air and, in fact, the main focus of the study was the behaviour of these particular smoke constituents in air rather than any information at all, but the health hazards of this particular constituent. Q. At any rate, would you simple explain to me the conclusion that the article contains on page 405 where it is stated that: "Smoke from Canadian cigarettes could well deliver appreciably smaller amounts" of certain compounds, one of which is a very long word you describe. BY Mr. ROGER BAKER, Q.Co: Object to the question, Mr. Cherniak...

283 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 2O 3O 40 BY Mr. EARL CHERNIAK, Q.Co: I thought it came within your guidelines just asking him to explain... BY Mr. ROGER BAKER, Q.C.: To explain a conclusion, and the explanation of a conclusion contains the germ of an opinion, Mr. Cherniak. This man is not a chemist, number one, he is not qualified as a chemist or a toxicologist, as you well know. He has certainly not been qualified in any kind of expert role in this hearing and any opinion that he may have, may have expressed within a departmental document or otherwise, is irrelevant and not subject to be admitted as evidence, period. Therefore, I will instruct the witness not to answer the question. BY Mr. EARL CHERNIAK, QoC.: Q. All right. Now, other than - can we mark this study then as the next RJR document. BY Mr. ROGER BAKER, Q.C.: Reserved. BY Mr. EARL CHERNIAK, Q.C. : I'm sorry, the witness has identified it. BY Mr. ROGER BAKER, Q.C.: The fact that the witness's name appears on the document is of no importance to me or anybody else, Mr. Cherniak. This witness is not an expert witness and the fact that he is testifying doesn't give you the right to file the document to the discovery any document you feel like, I can assure you. So it will go under reseve, as the others have,

284 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 20 3O 40 or non-departmental documents. BY Mr. EARL CHERNIAK, Q.C.: That's RJR-II (reserved). (TO WITNESS): Q. Have there been any other comparisons made of the content of properties or the like between Canadian cigarettes and American cigarettes, other than, but of the same general nature, as the study we've been talking about? A. In the past we have commissioned studies of levels of tar and nicotine and carbon monoxide in the smoke from mainly Canadian cigarettes, but on occasion we have also examined some American cigarettes. Q. And has it been determined on those studies that American cigarettes have higher levels of tar and nicotine than theirCanadian counterparts? A. Studies we've commissioned, and the few American brands we've look at, have fallen in the same range as Canadian brands for tar and nicotine and carbon monoxide, when tested by exactly the same protocol. Now, I believe there were earlier studies, partly commissioned by the department, that generally found Canadian - when looking at a broader range of American cigarettes, when comparing them on the same basis, American and Canadian cigarettes, found Canadian cigarettes, found Canadian cigarettes to be generally a little bit higher in tar and nicotine than American cigarettes. Q. Now, will you produce to me please the studies that you've been referring to in your last answer? Ao Yes, I think we can make an undertaking to to that. Q. Now, I am looking at the written contestation of the Attorney General of Canada in this litigation and in paragraph i0 there is a reference in the - in the defence - in paragraph 10(a) to what is accepted in the medical and scientific - in the scientific and medical communities with respect to the effect of the consumption of tobacco products. Are you aware in general of that paragraph?

285 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 20 30 40 BY Mr. ROGER BAKER, Q.C.: Well, if you're paraphrased it, could you show it to the... BY Mr. EARL CHERNIAK, Q.C.: I'd be happy to but I have only my copy here; do you not have a copy? BY Mr. ROGER BAKER, Q.C.: Someone has just gone out to get one, Mr. Cherniak, so you might want to wait for a copy. What paragraphs were you referring to - i07 BY Mr. EARL CHERNIAK, Q.C.: Paragraph i0, yes. And I was referring in particular in this question to paragraph i0 (a). BY Mr. ROGER BAKER, Q.C.: Uh-hun. BY Mr. EARL CHERNIAK, Q.C.: Q. Have you refreshed your memory with i0 (a)? A. Yes. Q. In the period leading up to the passage of the Tobacco Products Control Act, did Health and Welfare Canada provide the Government, that is the Minister, and through it the Parliament, with any reports, documents of any nature and kind whatsoever dealing with the - with what was accepted in the scientific and medical communities throughout the world with respect to the consumption of tobacco products? A. Yes, we certainly would have provided him summaries or principal findings from scientific literature and these would have taken various forms and, probably, done more than one. Qo And what I'd like you to do now then is to advise me what those report - what those various forms

286 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 2O 30 4O of reports were and please provide me with copies of any such reports, documents, information of any nature and kind that would have been provided to the Minister and the Government in the period leading up to the passage of this Act, beacause I am not aware of any such documents having been made available in the documents that were pro- duced us. Maybe that I've missed them, but I'd like to see them. BY Mr. ROGER BAKER, Q.C.: Mr. Cherniak, when you first put the question to the witness, you put it on the basis of "the Minister, the Government and Parliament", you now seem to have reduce the scope of who reports and documents may have been produced to an~ you seem to be suggesting now that it was to the Minister and Cabinet, in respect of which they made a decision as to go forward with the statute or not and I should advise you that it may well be that the documents that were reviewed by Cabinet or by Cabinet committee may be subject to a privilege under 36.3. So I will undertake in a limited way to have the witness do a view of the recent health documents, such as you made reference to, but I cannot give you an unqualified undertaking that everything that went before Cabinet, or the Minister in connection with his Cabinet responsibilities for the passage of this statute will be provided to you. BY Mr. EARL CHERNIAK, Q.C.: Well, what I want is an undertaking that the examination and search will be made and either the documents that were provided to the Minister, to Cabinet, to Parliament, to the Government generally, will either be produced or that there will be disclosure made as to the kind and nature... BY Mr. ROGER BAKER, QoC.: What they were.

287 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 20 30 40 BY Mr. EARL CHERNIAK, Q.C.: ... that were not going to be produced so that the appropriate action can be taken to determine the validity of the objection. Will you undertake to do that? BY Mr. ROGER BAKER, Q.C.: I understand what you are saying, yes. BY Mr. EARL CHERNIAK, Q.C.: Yes, I appreciate you understand; will you undertake to do that? BY Mr. ROGER BAKER, Q.C.: I will undertake to have an inventory made of what documents existed and were produced and when and I will seek counsel from the Attorney General of Canada and the Privy Council as to whether it is appropriate to disclose to you what documents went before Cabinet in respect of the decision. So, I therefore cannot give a blanket undertaking; the research will be made and full disclosure will thereafter be made as to what was before the Cabinet. BY Mr. EARL CHERNIAK, Q.C.: Thank you. BY Mr. ROGER BAKER, Q.C.: Can't do it! BY Mr. EARL CHERNIAK, Q.C.: Q. Mr. Collishaw, we've now been in your examinations for discoveries for six to seven months after this litigation was started; could you not produce to me even one study that was delivered by Health and Welfare Canada of the kind that is referred to in either paragraph 10(a) or paragraph 10(b) of the...

288 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak I0 2O 30 40 BY Mr. ROGER BAKER, Q.C.: Delivered to who, Mr. Cherniak? BY Mr. EARL CHERNIAK, Q.C.: Delivered to the Minister, to Cabinet, to Parliament, any such study that deals with the what is accepted in the scientific and medical community. BY Mr. ROGER BAKER, Q.C.: Well you just said "the Minister", the Cabinet, Parliament, or anybody." Now there are a lot of health documents, I can assure you, in the Department of Health and Welfare that relate to the allegations in paragraph lO(a) and lO(b) of the Contestation. If you want an inventory of what those documents are as they exist in the bowels of the department, as it were, we'll give it to you. If you are asking for documents that were delivered just prior to the passage of the Act to the Cabinet for their consideration, I have - I'll simply repeat the objection I made five minutes ago. So what is it that you are asking for? BY Mr. EARL CHERNIAK, Q.C.: I'm, you know, because we are all here today and we've got the next two days set out here, I was simply wondering if - so that we don't totally waste our time in the next little while if any one, or more of those reports that were made prior to the legislation being passed could be produced so that we can spend some time on it. BY Mr. ROGER BAKER, Q.C.: Well, I'm kind of surprised, Mr. Cherniak. This discovery was set up quite a long time ago. Quite apart from the validity, or lack of it, of the objection in

289 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 2O 3O 4O respect of 36.3 of the Canada Evidence Act, if you wanted a list of Health documents, for example, that were given, assuming that it was legitimate for you to get those, it seems to me that you simply would have sent a request in writing to us in advance. Because this man doesn't come armed with all the documents of the Department of Health and Welfare on his shoulder, so I don't know what you mean in your reference to "so we don't waste any time" He clearly doesn't have the documents here and he wasn't going to have them anyway, unless you asked for them. BY Mr. EARL CHERNIAK, Q.C.: So is what you are telling me that you are simply not in a position now to provide me with one document, or report that was provided to the Minister, Cabinet or the Parliament prior to the passing of this legislation that deals with what is accepted in the scientific and medical communities throughout the world with respect to the consumption of tobacco products and the health problems that are said to relate to them. Is that the answer, you simply can't produce any of those documents now? I just want to know, it's simply yes or no, either you can or you can't. BY Mr. ROGER BAKER, Q.C.: It's not such a simple answer. As I've already said twice in the last ten minutes, Mr. Cherniak, I am not going to give you an undertaking to produce those documents for reasons already given. But I hastened to add the last time when I made the objection, that I think it is sort of improper of you to infer that you want the documents so we wouldn't be wasting any time; you didn't ask for the documents. You've been given - RJR-MacDonald has been given all the documents that it asked for. It was content to accept documents on a list put by Mr. Belobaba. Both RJR-MacDonald

290 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 and Imperial Tobacco seemed to have consented to take possession only of the documents on that list. So it's inappropriate now for you to put on the record, in a discovery, to suggest "we might be wasting time", because thedocuments - the notional documents, whatever they were, that were given to the Cabinet prior to the passage of a Bill (a) aren't at the finger tips of Mr. Collishaw - you may be surprised that they might not be - and (b) I am telling you in any event, if they were, we might well have to preclude their deposit here for the reasons I've already given four time. 20 30 40 BY Mr. EARL CHERNIAK, Q.C.: Q. Mr. Collishaw, could you produce such documents for tomorrow morning? BY Mr. ROGER BAKER, Q.C. : You mean physically, if he had to, with a gun against his head, and a Court order, is that your question? BY Mr. EARL CHERNIAK, Q.C.: I've made no reference to guns or court orders; I simply want to know whether documents that were put before the Minister, the Cabinet, or Parliament with respect to the allegations of paragraph lO(a) could or could not be produced tomorrow morning? BY Mr. ROGER BAKER, Q.C.: Could, under what circumstances? I don't know what you mean by "could" BY Mr. EARL CHERNIAK, Q.C.: Pursuant to the request I just made Sir. BY Mr. ROGER BAKER, Q.C.: You mean will be produce them tomorrow morning, is that your question? BY Mr. EARL CHERNIAK, Q.C.: Yes, the first question is "could", and the second is "will"

291 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 20 3O 40 BY Mr. ROGER BAKER, Q.C.: Well, to "could", I don't know but "will", certainly r~ot . BY Mr. EARL CHERNIAK, Q.C.: Q. Now, Mr. Collishaw, has the Department of Health and Welfare done any research into the question of mortality caused by tobacco - or said to be caused by tobacco products in Canada? A. Officers to the department, including myself, have done such a research, yes. Q. And when you say "officiers of the department, including yourself have done such a research" have they done such a research with departmental facilities, on department time? A. Yes. Q. And using information gained, or gleaned from either the department itself, or other departments of the Federal Government? A. Yes. Q. Fine. And how many studies on that topic done by officials of Health and Welfare Canada are you aware of? A. No, I can't recall an exact number but it would be in the neighborhood of perhaps a dozen over a long period of time. Q. Starting when? A. Going back to mid-1970's. Q. Okay, and would you produce them to me? A. I think we can make such an undertaking, yes . Q. Thank you. BY Mr. ROGER BAKER, Q.C.: Well, hold on, Mr. Cherniak... BY Mr. EARL CHERNIAK, Q.C.: The witness has made the undertaking.

292 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 20 3O 40 BY Mr. ROGER BAKER, Q.C.: Come on! You, I presume, have seen the list that you yourself, or that your colleague has used attached to a subpoena; do I take it that you've not looked at that list and you want Mr. Collishaw to reinvent the wheel and look through all the documents in the department to find studies on mortality rates? BY Mr. EARL CHERNIAK, Q.C.: I'm not here to answer questions; I'm here to ask questions. BY Mr. ROGER BAKER, Q.C.: Yes, but I am here to make sure that the department doesn't go through a needless and useless exercise, Mr. Cherniak. It already has done so twice and I don't want it to happen a third time needlessly. BY Mr. EARL CHERNIAK, Q.C.: To the extent that Mr. Collishaw - that the Government has already produced any of the ten to twelve studies dated from the mid-1970's that he referred to, of course it is not necessary to produce them again. To the extent that there are studies that have been done by officials of Health and Welfare Canada, on the issue of mortality attributable to tobacco use in Canada, that are included in those ten or twelve studies, I'd like to see them. The witness said it could be done, he has agreed to produce them, let's go on. (TO WITNESS): Q. Now, were you, Sir, involved in the preparation of a paper departmentally published in something called "The Canadian Journal of Public Health", called "Mortality Attributable to Tobacco Use in Canada"? A. Yes, I was.

293 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 2O 3O 4O Q. And that was published sometime in 1988? A. Yes. Q. Am I correct? A. Yes. Q. And was that study prepared as a part of your general work in the Department of Health and Welfare? A. Yes, it was. Q. And was that study prepared using information that was gleaned by, or on behalf of the Department of Health and Welfare Canada? A. Yes. Q. And was that study approved by your peers and/or superiors prior to it being released for publication in the journal in which it was published? A. it was reviewed and approved by my peers and superiors prior to being submitted to a journal for consideration for publication, yes. Q. And over what period of time was the study that ultimately appeared in this journal, prepared; in other words, when was the study started? BY Mr. ROGER BAKER, Q.C.: What's the relevance of the information that you seek to gain, Mr. Cherniak; the document speaks for itself, it speaks to certain issues and I'm sure you've read the document, what difference does it make when he started writing it? BY Mr. EARL CHERNIAK, Q.C.: Surely, this is the document that's relevant to the issues raised in paragraph i0 of the answer, whatever you call this document - the written contestation... BY Mr. ROGER BAKER, Q.C.: It's called a "Written Contestation" BY Mr. EARL CHERNIAK, Q.C.: And I would like to know over what period of time; was it prepared in twenty minutes, or was it prepared over a period of years. Perfectly reasonable question.

294 NEIL E. COLLISHAW (for the Respondent) Cross-examintion by Me Cherniak i0 20 30 40 (TO WITNESS): Qo Anyway, can you answer the question? BY Mr. ROGER BAKER, Q.C.: Well, wait a minute! Does the question seek to know the spread of the data over a period of time, or whether the man gave a considerable amount of thought to writing the document by spending twenty minutes, or a year doing a year, Mr. Cherniak, which is it? BY Mr. EARL CHERNIAK, Q.C.: I don't think it's necessary to get into any discussion about it; it's a reasonable question, will you let the witness answer it or not? BY Mr. ROGER BAKER, Q.C.: Be more precise in your question; I don't understand the question. BY Mr. EARL CHERNIAK, Q.C.: Q. Over what period of time was - when was this study started and when was it completed? A. I went through several drafts over a period of years, actually, and it was completed with its publication in the May/June 1988 issue of Canadian Journal of Public Health. Q. But I just - what I want to know is what period of years do you mean by the phrase - your phrase "a period of years"? A. Oh, I could have been - I think it was dragging on for two years, perhaps a little longer. Q. And was it submitted to other journals, prior to it being published in the Canadian Journal of Public Health? A. Yes, previous version had been submitted after going through the peer and superior review and approval process I mentioned earlier, a previous version had been submitted to the Canadian Medical Association Journal. Q. And had it been submitted for publication anywhere else besides...

295 NEIL E. COLLISHAW (for the Respondent) Cross-examination by Me Cherniak i0 2O 30 BY Mr. ROGER BAKER, Q.C.: I object. I object to the question. Whether it was submitted to other journals for publication and whether a publication was declined for whatever reason is of no import. Asthis witness is not being examined as an expert witness, Mr. Cherniak, the qualifications of the document, the usefulness of the document, the excellence of the document, the number of journals which they sought to have it published in, which may or may not have accepted it, or may or may not have declined it is simply irrelevant. This is not an expert witness. BY Mr. EARL CHERNIAK, Q.C.: Q. Was the - first of all, let's make this document, the publication in the Canadian Journal of Public Health, under the heading of "Mortality Attributable to Tobacco Use in Canada", let's make that the next exhibit - RJR-12 - so that we can identify it. (DISCUSSION OFF THE RECORD) (NOTE: 13, 1989). EXAMINATION ADJOURNED TO i0 A.M., APRIL AND FURTHER FOR THE MOMENT DEPONENT SAITH NAUGHT. (S) K. KHANNA Official Court Reporter 40

296 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 30 40 April 13th, 1989 (A.M.) APPEARANCES: MR. COLIN K. IRVING, MCMASTER, MEIGHEN) Attorney for Applicant MR. EARL CHERNIAK, Q.C. (LERNER & ASSOCIATES) Counsel for Applicant MR. GEORGES THIBAUDEAU, (MACKENZIE, GERVAIS) Counsel for Applicant MR. ROGER E. BAKER, Q.C. (BAKER, NUDELMAN) Attorney for Respondent MR. CLAUDE JOYAL, MR. PIERRE EVRAIRE, MISS PASCALE LAGAC~ (DEPARTMENT OF JUSTICE) Representing the Attorney General of Canada ALSO PRESENT: MR. SIMON POTTER, MR. PIERRE BIENVENU, MR. GREGORY BORDAN, (OGILVY, RENAULT) Attorneys for Imperial Tobacco Ltd. MR. LYNDON BARNES, BARRISTER Counsel to Imperial Tobacco Ltd.

297 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 40 EXAMINATION FOR DISCOVERY AFTER CONTESTATION OF NEIL E. COLLISHAW MISTER NEIL E. COLLISHAW HAS APPEARED: Forty-two (42) years of age, Public Servant, residing at 134 Caroline Avenue, Ottawa, Ontario, WHO, having been duly sworn in, doth depose and say as follows:- CONTINUATION OF CROSS-EXAMINATION BY MR. EARL CHERNIAK, Q.C.: Q. Mr. Collishaw, I am looking at the notes for an address to the Legislative Committee given on January 25th, 1988, by the Minister National Health and Welfare. Are you familiar with this document? A. Yes, I am familiar with this document. Q. And did the Department of Health and Welfare prepare some kind of a breakdown in paper form or write the notes for this address? Ao Yes, this was prepared by myself and other people at the request of the Minister's office. Q. And were you the principal person responsible for it? A. As Chief of the Unit at the time, I was the principal person responsible for it although not perhaps the principal author. Q. And did you supervise it and revise whatever draft there was by the principal author? A. Yes. Q. And is there some backup material that went into that or was there a position paper prepared, a draft of the speech, some backup that went into the preparation of that document and, if so, can I see it? Ao Which particular parts? Q. Well, at the moment, all of it. I am going to ask about some particular parts, but the entire speech covers the subject matter of this litigation. And so I would like to know what went into all of it. BY MR. ROGER E. BAKER, Q.C.: Perhaps for clarification purposes, Mr. Cherniak, you could tell the witness what you mean by "what went into it"?

298 NE{L E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 20 30 40 BY MR. EARL CHERNIAK, Q.C.: What I want to know is was it based on some kind of articles? Was their a position paper prepared out of which this speech emanated? I don't know exactly how the Department works. That is why I am asking a general question. BY THE WITNESS: A. There certainly was not a position paper prepared regarding the speech but there is some factual material in the speech that is based on scientific knowledge as we knew it at the time. For example, conclusive evidence implicating tobacco use in the incidence of numerous debilitating and fatal diseases. Such evidence is found and well-summarized by panels of respected scientists in numerous reports of the United States Surgeon General, for example, and several reports of the World Health Organization. Q. I am not just speaking of material that might be found in outside journals or reports such as the Surgeon General's, and the like. I am speaking of inner-departmental material. For instance, did you write a memorandum of some kind to the person who was ultimately going to draft the speech indicating the kinds of things that you thought out to be in it and why and what, and the like. I am trying to figure out how this speech came to be? A. I may have written down some points in outline form for preparation of the speech; I might have written down some points in outline form that were eventually reflected in the speech. Q. And would there have been anyting else that... Would others have done the same thing, or would a memoradum have come back to you before the speech was done? That type of thing. Ao There probably were drafts of it and some revisions and improvements over a relatively short period of time in preparation of the speech. Q. Just tell me how this type of thing goes on. Once the draft is written, is it then circulated within the Department so that various branches of the Department or various officials within the Department comment on it and say: "I like this" or "I don't like this" or "something else should be in" or "this is wrong"? Ao That could happen. And I think, as I mentioned with regard to documents prepared by us yesterday, this speech once prepared to my satisfaction would move up the line in the hierarchy of Government organization,

299 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 40 and there would be people at different levels of the Department who would have an opportunity to comment and. And if they wish to make changes, changes would be made, and it would be forwarded to the Minsiter for delivery on January 25tho Q. And could you provide to me that document trail, memos from you down to the people who were going to prepare the speech and the circularization...? A. Well, in the case of this... Q. Let me finish my question. .... of the speech and then the memos that were generated, the comments that were generated as it moved up the line towards the Minister? Could you provide that because I don't think it is in the documentation that we have seen? A. In the case of this speech, there may not be much of that. My recollection of the preparation of this speech is that it was done within a very short period of time and it went through the chain of command in a short period of time with few or perhaps no comments at all. BY MAITRE ROGER E. BAKER, Q.C.: To make it easier for you, Mr. Cherniak, we will make the undertaking on behalf of the client to the extent that there is documentation on the circulation of the memo in the preparation of the speech. To the extent that it exists, we will provide it to you. BY MR. EARL CHERNIAK, Q.C.: Q. Now, there is one area in particular that I am interested in asking about today. And in the speech on page 2, page 7849 of Government documentation, the Minister says, refers to "35,000 deaths each year in Canada" from the substance that I guess is tobacco. What I want to ask you is, upon what data base or information base was the figure of thrity-five thousand (35,000) deaths gleaned from? A. It would have been based on a draft of a paper called "Mortality attributable to tobacco use in Canada", which was subsequently published. Q. And would it have been based on anything else? A. Well, that particular paper draws from a collection of scientific information... Q. I appreciate that but apart from this paper, the paper that you have just referred to and whatever

300 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 4O material that paper refers to, was that figure of 35,000 deaths in Canada based on any other information known to you or the Department of Health and Welfare? A. No, that is the source. Q. We will make this document RJR-13. Now, I take it that the study that you just referred to is a study called "Mortality attributable to tobacco use in Canada" published in the Canadian Journal of Public Health, Volume 79, May and June of 1988. A. Yes. Q. And you were the principal author of that study. BY MR. ROGER E. BAKER, Q.C.: Is that a question or a statement? It is co-authored, Mr. Cherniak. BY MR. EARL CHERNIAK, Q.C.: Yes, but my understanding is, and the witness, I am sure, is capable of telling me if it is not correct, that the first-named author is known as the principal author. Were you the principal author of this document? A. I was the first-named author. Q. Is that of any significance, or is it just alphabetical? A. My name begins with C. Q. So that is how it was decided, that your name would go first? A. I don't know. Q. I am just curious. A. In this particular case, I don't recall any particular hierarchy. Q. Who was the principal author of this document, Sir? Ao All three authors contributed. Q. Equal roughly? A. Roughly. Q. And over what period of time was this paper prepared? When was it conceived? A. As I mentioned yesterday, preparation of this paper went on over a few years, more than two, I think. Q. And was this paper based on any original research done in Canada with respect to Canadian mortality, or was it based on the statistical information gleaned by others?

301 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 40 A. In part, it was based on original epidemiological research done in Canada. Q. What part? A. There are two estimates of mortality presented in that paper. The first estimate is based on mortaliy follow-up of participants in a Nutrition Canada Survey, and the Canadian death records. The second is based, in part, on information from American surveys and, in part, on Canadian death records. Q. Did the Nutrition Canada Survey purport to break down deaths by causes? A. There was a survey... BY MR. ROGER E. BAKER, Q.C.: Unless you have the Nutrition Canada Survey in front of you, Mr. Cherniak, it is not open to you, I contend, to ask him to speculate on what a survey said. This man is not an expert and he is not an epidemiologist, as I must have said at least fifty times yesterday. BY MR. EARL CHERNIAK, Q.C.: He is not an expert, you say. He is not an epidemiologist. He is not both of those things, is that right? BY MR. ROGER E. BAKER, Q.C.: That is correct. He has not been qualified as an expert. He is not proffered as an expert witness, and he is certainly not an epidemiologist. BY MR. EARL CHERNIAK, Q.C.: I take it that he is not capable of being qualified as an expert? Can we take that from it, or not? BY MR. ROGER E. BAKER, Q.C.: Don't ask me to give you an opinion, Sir. BY MR. EARL CHERNIAK, Q.C.: I see. Well, it was his reference to the Nutrition Canada Survey, not mine. And the article does refer to it. I am just trying to find out what the Nutrition Canada Survey, what part the Nutrition Canada Survey played in this study.

302 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 4O BY MR. ROGER E. BAKER, Q.C.: I will take the objection again in another form, Mr. Cherniak. Mr. Collishaw and others in the Department of Health prepared a position paper for a legislative speech by the then Minister, Mr. Epp. You ask the witness who prepared that speech. He told you he and others did, and what was the basis for some of the things that were in the paper that you have filed as an exhibit. He referred in part of his answer to a paper that he had written. That paper, be it brilliant or otherwise, merely reflects, in part, the opinions of this witness. The opinions of this witness are not receivable in a discovery, we contend. He is not an expert witness. Therefore, you can't put questions to him in respect of his opinions on that document that you have got in front of you. BY MR. EARL CHERNIAK, Q.C.: Well, of course, at the moment... BY MR. ROGER E. BAKER, Q.C.: That is our position. If you wish to seek a judicial ruling on the objection, I invite you to do so. We have been here for a day and a half and there have been many objections. I have seen no movement from your side of the table to move the problem along. BY MR. EARL CHERNIAK, Q.C.: Of course, I am not at the moment asking for any opinions of the witness. I am simply asking for information as to what the Nutrition Canada Survey which was used in the document that he has referred, what it showed and what it didn't show. BY MR. ROGER E. BAKER, Q.C.: If it is simply information you are looking for, you are entitled to obtain information. BY Mr. EARL CHERNIAK, Q.C.: Well, of course, I thought that is why we are here. BY MR. ROGER E. BAKER, Q.C.: Let's make sure that we understand what we are talking about.

303 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 20 30 40 BY MR. EARL CHERNIAK, QoC.: Well, perhaps you could listen to the questions more carefully. Q. Now, can you help us, Sir, what did the Nutrition Canada Survey demonstrate? BY MR. ROGER E. BAKER, Q.C.: No, that is not the question you suggested you were going to ask. You are asking him to interpret what a Nutrition Canada Survey demonstrated, Mr. Cherniak. Ask him if he has got with him the Nutrition Canada Survey and then put a question to him on it. BY MR. EARL CHERNIAK, Q.C.: No. I am doing the questioning, not you. Q. In this article - and can we give this an identification number because I will seek to enter it. BY MR. ROGER Eo BAKER, Q.C.: It is 12. It is reserved already. BY MR. EARL CHERNIAK, Q.Co: Qo There is a reference to the number of the deaths attributable to tobacco use in Canada using risk estimates derived from a ten year mortality survey. I show you a follow up of participants in the 1970'72 Nutrition Canada survey. You will find it at Table 3 of the Green Book. Are you now familiar with the Nutrition Canada Survey that I am speaking of? A. Yes, I am. Q. My question is: Did that survey purport to relate to causes of death based on use or non-use of tobacco or was it something else? BY MR. ROGER E. BAKER, Q.C.: Mr. Cherniak, the document speaks for itself, what it says and whatever it purports to be based on. It is not open to this witness to interpret a document that is not even in front of him. Surely to goodness you know the rule, that it is not for him to make an interpretation of a document, even if it were here on the table.

304 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 40 BY MR. EARL CHERNIAK, Q.Co: We are talking to the witness about a document that is referred to in na article you wrote (referring to the witness). I am simply asking what use was made of that document. What was the document? How did it relate to this article that you wrote, Sir? Can you help me? BY THE WITNESS: A. The Nutrition Canada Survey was done in 1970 to '72. And as its name implies, the main area of questioning in the survey was on nutritional items. However, one of the questions did ask people whether they were smokers or non-smokers. Subsequently - that survey was done a long time ago. Now, we have mortality records in Canada. A death certificate is filed with every death that occurs and central records are kept. A follow up was made of the participants in the Nutrition Canada Survey according to whether they were smokers or not at the time of the survey, and relative risks of death during that ten year period that is referred to were computed for smokers and non-smokers. Q. So, was the application of the mortality that is used in this survey based on the Nutrition Canada Survey as opposed to all deaths in... A. Deaths among participants in the Nutrition Canada Survey. Q. And how many people were involved, how many participants were there in the original 1970-'72 Nutrition Canada Survey? How wide a sample are you speaking of? A. That I do not recall. Q. Approximately. A. I would rather not hazard a guess, but I do know that the sampling plan for the Nutrition Canada Survey was designed to represent, to give everyone in Canada an equal chance of being represented in the Nutrition Canada Survey, possibly with some exceptions in remote areas and institution populations. Q. So, what I am trying to figure out is and what I need is, and what I am getting to is an explanation of what you mean by the next paragraph: "Method and Results" And just so that Mr. Baker doesn't get upset, I don't want your opinioin on anything. I simply want you to explain to me in a little bit of detail what the next paragraph means. Now, let us just deal sentence by sentence. A. Okay.

305 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 4O Oo A. the result. Q. Q. "Johansen and others have provided estimates of relative risk...", etc. First of all, who is Johansen? A. That is Helen Johansen. She is a colleague of mine in the Department of National Health and Welfare. Q. This was an article that she did for the Canadian Medical Association Journal, I take it? A. Yes. Q. And you say that she provides estimates of relative risks in population, attributable risk of mortality in current and former smokers. .Is that what she has done? A. Yes. Q. And she did that based on a ten year follow-up of Nutrition Canada Survey participants? A. Yes. And she published that result? Yes. And we find it in that Journal? And it is taken up again in Table i, in Can you tell me what her definition was of ever smokers and never smokers? BY MR. ROGER E. BAKER, Q.C.: If you have the Johansen article, it may be clear and it may not be clear. BY MR. EARL CHERNIAK, Q.C.: No doubt. I want to know how he used it? BY MR. ROGER E. BAKER, Q.C.: That is not the question you asked him. You asked him what her definitions were in the article. Her definitions don't appear in this article. The article which you are referring to is not before us. It is not open to you to ask him to interpret somebody else's definition. BY MR. EARL CHERNIAK, Q.C.: I am not asking him to interpret it. I am asking him to tell us what it was. It is not a question of interpretation at all. This man used the woman's article. And he referred to the particular matter: current and former smokers, ever smokers. Q. Tell me what the definition means. What did you mean when you said in that sentence: "... current and former smokers"?

306 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 30 4O A. We used the definitions as they appeared in the original Nutrition Canada Survey and without referring to those documents, I can't tell you exactly what those definitions were. Q. With the reservation that you are not going to tell us exactly what they were, tell us what you remember them to be. A. I, well... BY MR. ROGER E. BAKER, Q.C.: Don't guess. If you are not certain about what you are saying, don't guess. We will make an undertaking to provide the definitions that you used as a basis for that article. BY THE WITNESS: A. Well, I will have to look at them to know precisely what they were. BY MAITRE EARL CHERNIAK, Q.C.: Q. Now, I take it that the next sentence relates to what you did, you and your colleagues did: "Apprlying these estimates...", that is the Johansen estimates, "... to 1985 mortality data..." A. Yes. Q. Is that what you did? You applied Johansen's estimates to 1985 mortality data? Now, is that in Canadian 1985...? A. Yes. Q. All deaths in Canada in 1985 is that what you did? A. Yes. Q. So, just so I understand it, would you explain to me how you applied the estimates to 1985 Canadian mortality data? Did you look at all the death certificates or did you simply apply percentages? What did you do? A. The numbers of deaths are reported annually by Statistics Canada... Q. Everybody who died in Canada? A. Yes. Q. Okay. A. And there is a formula that is frequently used in epidemiology to calculate population attributable risk. And you will see a figure that is a result of that... BY MR. ROGER E. BAKER, Q.C.: I am going to stop you, Mr. Collishaw.

307 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak l0 2O 30 40 Mr. Cherniak, this man is not an epidemiologist. That he wrote an article using epidemiological data is his business. But he is not here as an expert and I don't want him describing what epidemiologists do and don't do. BY MR. EARL CHERNIAK, Q.C.: I want to know what he did. I am not asking him what epidemiologists do and don't do. BY MR. ROGER E. BAKER, Q.C.: Right. Confine your answer to what you did to determine that there were thirty-four thousand seven hundred and sixteen deaths (34,716). What you relied on. BY THE WITNESS: A. I relied on the information produced by the paper from Johansen and others, and the Canadian Mortality Data to determine a proportion of the population attributable risk which is the proportion of deaths that can be attributed to tobacco. Once that proportion is determined and you have the numbers of deaths, it is a simple multiplication to determine the actual number of deaths that could be attributable to tobacco use. BY MR. EARL CHERNIAK, Q.C.: Q. For instance, let us just take an age group, because, as I understand it, you have broken these things down by age groups in your... A. Not in this estimate, no. Q. Okay. A. As is indicated there: "... the 862 deaths observed in the follow-up period were too few to permit a separate estimation of risk by five year age groups" Q. So I can understand it, is this paragraph the basis for the Minister's thirty-five thousand (35,000) deaths? A. No, not completely. Q. Well, we have got figures here: "... around thirty five thousand (35,000)" Is this part of the estimate? Is this part of the basis for the Minister's... A. Part of the basis.

308 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 4O BY MR. ROGER E. BAKER, Q.C.: For the Minister's what? BY MR. EARL CHERNIAK, Q.C.: The Minister's use of the figure of thirty-five thousand (35,000) in his speech. BY MR. ROGER E. BAKER, Q.C.: It is not established that the Minister used the speech, Mr. Cherniak. BY MR. EARL CHERNIAK, Q.Co: Oo Did the Minister use the speech, Mr. Collishaw? Yes, the Minister used the speech. Have we established that now? BY MR. ROGER E. BAKER, Q.C.: It would appear to be established. BY MR. EARL CHERNIAK, Q.C.: Q. The thirty-five thousand four-o-four (35,404) deaths in 1983, for instance, that is simply the.., that is the sum percentage of the total deaths in Canada? Is that how that was determined, applying Johansen's figures to total deaths in Canada? Is that what was done? A. Johansen first determined relative risks for ever smokers. Once you have relative risks and the proportion of ever smokers, you can calculate population attributable risk. Population attributable risk is then applied to the total number of deaths in Canada to obtain an estimate of the number of deaths attributable to tobacco use. Q. But would I be correct that in that thirty-five thousand four-o-four (35,404) there has been no attempt to identify who those thirty-five thousand people are or some group of them and look at their death certificates, for instance? A. No. Q. Is that correct? There was no such attempt? Simply the application of Johansen's relative risk percentages to total deaths? A. Yes. Q. And I just want to make sure that I understand

309 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 4O what you meant by ninety-five percent (95%) confidence limits. Let us just go through the 1985 Mortality Data. "An estimate of 34,716..." I take it that number means deaths from tobacco use in Canada, right? A. Yes. Qo I take it that that is the 1985 estimate of tobacco related deaths in Canada, correct? A. Yes. Q. And then you have got a bracket: "(95% confidence limits C.L .... )" and then there are two numbers. A. Yes. Q. What does that mean? What do those two numbers means? A. The number thirty-four thousand seven hundred and sixteen (34,716) is an estimate; with estimates there is some degree of uncertainty. "Confidence limit" is a statistical term and indicates that while there can be some uncertainty about this particular estimate, we, in 95% of theoretical cases, the true number would fall between twenty-two thousand three hundred and thirty-three (22,343) and forty-two thousand and sixty-six (42,066). Confidence limits gives you a way of determining the confidence one can have in a particular estimate. Q. And the range, then, to understand what you have said there, you have read the thirty-four thousand seven hundred and sixteen (34,716) figure to mean that ninety-five (95) times out of a hundred (i00) the figure would fall somewhere between twenty-two thousand three thirty three (22,333) and forty-two thousand-o-sixty six (42,066), correct? A. That is one way of looking at it, yes. Q. Is that a correct way? A. Yes. Q. And five (5) times out of a hundred (i00) the confidence level would be such that the range would be broader than that? A. Right. It is possible that the estimate could lie outside that range in the five theoretical cases out of a hundred. Q. Either higher or lower than those two numbers? A. Yes. I say they are theoretical cases because we have, it is one country and it is the mortality records for Canada. So you have to imagine having repeated Canada's mortality experience over ten (i0) years a hundred (i00) times to get an understanding of what"confidence limits" means. It is obviously a theoretical construct. Q. But, of course, the estimate itself was a theoretical one because it wasn't based on analysis of actual death certificates, was it?

310 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 20 3O 4O A. That is not correct. Q. That is not correct? It was based on... A. No, it is not correct. It is theoretical. It is based on an analysis of the actual mortality experience of people who reported themselves as current and former smokers in the Nutrition Canada Survey versus those who reported themselves as never having smoked in that Survey. So it is based on real life and real death experience. Q. And just so I understand it, Table 1 is simply a presentation of those figures? A. There is some more detail given in Table I. Q. Thank you. Now, do I understand that Table 2 is another way of looking at other data to try to determine mortality from tobacco in Canada? A. That's correct. Q. And what mortality information did you use in respect of that part of the article? A. In this case, the results were combined from a variety of sources. There was a National Mortality Survey and Current Population Survey conducted in the United States. Was that two different surveys or one survey? It was two surveys. Okay. Let's break them down. Were they both U.S.? A. Q. A. Yes. And who did the first one? They were both done by the U.S. Government. The Current Population Survey was conducted by the U.S. Bureau of the Census. Q. When? A. In August of 1967. The National Mortality Survey - I would perhaps have to check to give you a precise report on which organization exactly did that, but it was an arm of the U.S. Government, and that survey was conducted during the period 1966 to '68. Q. So that are those the two population surveys that were used? A. Well, there was a third source of mortality there, and that was... Q. We are going to come to that in a moment. I am just talking about the population survey that was used. Two United States surveys, Government surveys done of the U.S. population, I take it? A. Of samples. Q. Samples of the U.S. population. Do you know where the samples were taken? Nationwide? Limited to ..... ?

311 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 4O BY MR. ROGER E. BAKER, Q.C.: Mr. Cherniak, he makes reference to a census taken by the United States Bureau of Census. It seems to me that if the document doesn't disclose the methodology of the U.S. Bureau of the Census, it is hardly open to you to ask him to speculate on what the U.S. Bureau of the Census might have done as part of its methodology. BY MR. EARL CHERNIAK, Q.C.: I wouldn't ask him to speculate unless he speculated... BY MR. ROGER E. BAKER Q.C.: Well, did he? BY MR. EARL CHERNIAK, Q.C.: Well, could you tell me whether he speculated... BY MR. ROGER E. BAKER, Q.C.: Well, don't ask me. You have got the article in front of you. Don't ask him to interpret the article for you. BY MR. EARL CHERNIAK, Q.C.: Well, it is his article. Q. Now, did you make use of these two U.S. population surveys? A. What I used was an analysis of these surveys prepared by Dr. Frank Godley as referred to in reference i0. Q. so, is the answer then that in this article there is use made of the two U.S. surveys? A. Yes. Q. Now, what I want to know is, if you know the answer to this, is: Was the sample that was taken in the United States in the 1960s taken right across the United States or was it based on some particular area of the united States, urban south east... BY MR. ROGER E. BAKER, Q.C.: Mr. Cherniak, the answer to that question can't be of any relevance.

312 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 20 3O 40 BY MR. EARL CHERNIAK, Q.C.: I think it is my discovery. conduct it... I am entitled to BY MR. ROGER E. BAKER, Q.C.: Oh, yes. But you are only entitled to... I have let you go quite far in the last ten or fifteen minutes, Mr. Cherniak. It is not open to you to cross-examine this witness on an article that he has written unless and until you are asking him to explain certain words and phrases that you don't understand. He doesn't qualify here as a witness. In fact, we have said many times that for the purposes of admissibility this document simply isn't fair game for you to produce. Nell Collishaw is here as a "fonctionnaire" of the Department of Health and Welfare. What he may or may not have written is not admissible as evidence, Mr. Cherniak, which is why we have reserved the documents yesterday, or the production of the documents. BY MR. EARL CHERNIAK, Q.C.: Q. Just on that point, Mr. Collishaw, was this document written as a part of your duties with the Department of Health and Welfare? A. Yes. Q. And was it written on the Department of Health and Welfare time? A. Yes. Q. And was the research that is was based on obtained on the business of the Department of Health and Welfare? A. Yes. Q. Now, can you help me, then, as to... first of all, do you know where the United States population base that was used in the two studies came from? A. The National Mortality Survey was a follow back survey based on a sample of twenty thousand (20,000) death records, and they followed back with the next of kin; but the probability sample was the persons who had died, and that was based on the probability sample of the entire American population. The Current Population Survey... Q. Was that the 1967 one? A. Yes .... it was also a probability sample of sixty-one thousand (61,000) adults, so it is also representative of the American population.

313 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 30 40 Q. As I understand it, you were applying Table 2, your approach to Table 2, uses the American population studies and then there are some mortality studies that were done by somebody called Hammond and Godley? Tell us about that. A. It was Frank Godley who combined the data from these two surveys to produce estimates of relative risk for ever smokers by five year age group. Q. And when did he do that? A. The work ..... BY MR. ROGER E. BAKER, Q.C.: If it is cited in your article state it. it is not, don't speculate. If BY THE WITNESS: The work was done in 1974. BY MR. EARL CHERNIAK, Q.C.: Q. And did the man named Hammond do a similar type of thing? A. There was a survey done by the, or an epidemiological study carried out by the American Cancer Society and reported by Hammond. It dealt with the mortality related to smoking. However, the results of the Hammond survey were not used to prepare these estimates. However, there is some discussion of the work reported by Hammond in this article. Q. So, so far, we have got the population survey done in the United States in the 1960s, and you have applied to them a relative risk that was done by a man named Godley in the United States who calculated these figures in 1974, am I correct? A. He calculated relative risks based on these survey results, yes. Q. In this calculation reflected in Column 1 of Table 2? A. Yes. Q. So, where I read that "relative risk for ever smokers" that is Godley's relative risk? A. Those are the calculations that he did. Q. And do you know what his definition was for ever smokers and never smokers? A. Again, I would prefer to refer to Mr. Godley's paper so that I can answer that question precisely. Q. And do you know whether it was the same or a different definition than the one that was used in Canada Nutrition Survey?

314 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O A. Again, I would prefer to look at the reference material to answer the question precisely. Q. And then in your Column 2: "proportion of ever smokers in Canada", where does that come from? A. That comes from, well, two different sources. There is a column for 1983 and there is a column for 1985. 1983 is derived from a survey called "Smoking Habits of Canadians" that was undertaken by our Department in conjunction with Statistics Canada. And the 1985 column comes from the General Social Survey which was done by Statistics Canada. Q. And did you compare the definitions of ever smokers and never smokers in those two surveys in Canada with Godley's definitions? A. I did. Q. And were they similar? Different? A. They were similar; whether they were exactly the same or not, I don't recall. Again, I would like to check... Q. And did you make any allowance for any differences? A. No, in that they were similar enough not to have to worry about that. Q. And the the Column 3: "Proportion of deaths attributable to tobacco use in Canada" where does that proportion come from? A. Those figures can be derived from the relative risk and proportion of ever smokers column according to the formula which I referred to earlier. Q. Which formula is that because I am unfamiliar with that one? A. It is the formula for calculating population attributable risk. It is given in the paper on page 169. (PAUSE IN PROCEEDINGS). 4O

315 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak DEPOSITION OF MISTER NEIL E. COLLISHAW NEIL E. COLLISHAW UNDER THE SAME OATH i0 2O 30 4O BY MR. EARL CHERNIAK, Q.C.: Q. Mr. Collishaw, what I am trying to figure out is what Column 3 is. How you arrived at the proportions or the decimals that we find in Column 3. As I understand it, it has got something to do with some British study or some study published in the British Journal of Preventive Medicine? A. Yes. Column 3 is derived by applying the figure shown in 1 and 2 to the formula given on page 169. Q. The formula given on page 169 comes from the McMahon and Cole Study. And what was the McMahon and Cole Study? Where was that done and what was it? A. It was published in the British Journal of Preventive and Social Medicine. Q. Explain to me what it was. A. It is a mathematical paper, as I recall, going through the derivation of this formula. Q. But how do they get to the formula? Do they do some research on some .... BY MR. ROGER E. BAKER, QoC.: You cannot ask this man... BY MR. EARL CHERNIAK, Q.C.: How do you know what .... BY MR. ROGER E. BAKER, Q.C.: be? How do I know what your question is going to BY MR. EARL CHERNIAK, Q.C.: I want to know what he understands the formula he used to be. Where does it come from? What is it based on? You know, was it based on analysis of deaths in Canada, in the United States, in Iceland? I just want to understand what the formula the man used was. BY THE WITNESS: A. this formula is frequently used in epidemiology

316 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 4O to determine population attributable risk. However, I am not an epidemiologist by.training, and going into a lot of detail of its derivation is not an area that .... Q. You misunderstand me. I want to know whether the formula was based upon some study of deaths somewhere or risks somewhere? A. No. Based on theoretical considerations of how one can determine an attributable risk given information on relative risk and proportion of ever smokers. Q. But was that based on any kind of a population survey? A. No. It is a mathematical derivation. Q. I am not sure that I see but I understand what you are telling me. So at any rate, based on that mathematical formula, you came to a proportion of deaths attributable to tobacco use in Canada? A. Yes. Q. And then Column 4 is simply from Statistics Canada, the total deaths in Canada in 1983 or 1985, as the case may be... A. Yes. Q. And Column 5 is the percentage of Column 3 applied to Column 4, is that correct? A. Yes. Q. So it is simply taking men ages 60 to 64, the 1985 figure in Column 5 would be obtained taking the fraction 0.289 to the total number of deaths of nine thousand five twenty (9,520), is that correct? A. Yes. In addition, confidence limits are given as shown. Q. Just so I understand what these figures mean, let's take 1985 deaths in Canada of males. The total number of deaths of males in 1985 in Canada was seventy eight thousand eight eighty four (78,884). A. In the age group shown, yes. Q. Well, between ages 34 and 84? A. And that is a known number. That is not somebody's estimate, that is a known number, right? A. Death records. Q. That is from actual death records? A. Yes. Q. And the deaths attributable to tobacco, let's see, of men, say, over the age of 70 - I'm sorry, of all men would be twenty one thousand eight seventy (21,870)? A. Yes. Q. So as I understand it, of that twenty one thousand eight seventy (21,870), the last three numbers, more than ten thousand (i0,000) men, were over 70 whey they died?

3!7 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 4O A. Yes. Q. So, for instance, of the twenty one thousand eight seventy (21,870) deaths that, according to this Table were attributable to tobacco, about half of them, maybe a little less than half, were deaths of men over the age of 70? A. A little less than half, yes. Q. And about twenty five percent (25%) of them were man over the age of 75? A. Well, I am not as quick on my calculations of percentages as you are. Q. Well, maybe it is not quite 25%. It is about forty eight hundred (4800), a little better than forty eight hundred (4800) over twenty one thousand eight seventy (21,870), so it is about 23%, right? A. Again, I marvel at your ability to calculate these things, but... Q. Trust me. A. Okay. Q. Now, would we have any way of knowing from this analysis how many of these - let's just take the men, for instance - the twenty one thousand eight hundred and seventy (21,870) deaths in 1985 that are said to be related to tobacco, did you attempt to do any breakdown of how many of those would be said to be related.., how many of those men would have died from disease, how many would have died from other causes? A. Not from this particular calculation. I have not done that, no. Q. But does this figure include all men that died of heart disease, the twenty one thousand eight seventy (21,870)? A. No. It includes only those deaths that could be attributable to tobacco use. Q. How was it determined? A. By the calculations we have just walked through. Q. But how was it determined which man died from heart disease died from tobacco, and which didn't? A. It wasn't determined. Q. I see. So, have we gone through the two methods, then, that were used in this article to arrive at the Canadian mortality? A. Yes, we have. Q. So, in the Table 2 we know that Column 4, the total number of deaths in Canada comes from figures derived from research upon Canadians, that is the total number of deaths in Canada, correct? A. Yes. That is vital statistics records.

318 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 40 Q. And do any of the figures in any of those other columns come from research upon Canadians? A. Yes. Which ones? Column 2. "Proportion of ever smokers in Canada", Oo right? A. Q. deaths does? A. Q. Yes. So Column 2 does and the total number of Yes. And I take it that the other columns 1 and 3 do not come from research done in Canada upon Canadians? A. Column 1 does not come from Canadian sources; however, Column 3 is derived from Column 1 and 2. Q. But using a mathematical formula? A. Yes. Q. Now, was this paper submitted to the Canadian Medical Association Journal? A. Yes. Q. An earlier version of it was. Q. And was it rejected? A. Yes, it was. Q. And when was it submitted to the Canadian Journal of Public Health? A. It is indicated at the end of the article. It was received by the editor on March 30th, 1987. Q. Do you know whether that is a referred journal? A. Yes. Q. And did you get back the copies of the comments on the article by the referees? A. Yes. Q. And they are part of your productions? A. Yes, I believe they are. Q. And there were two of them? A. Yes, as I recall. Q. And one indicated that it should be published as soon as possible with the highest priority, do you recollect that? A. Q. be rejected? A. Q. not? Yes. And the other one thought that it should Yes. And criticised it quite severely, did it BY MR. ROGER BAKER, Q.C.: You are asking him to characterise the words

319 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 30 4O of other people, Mr. Cherniak. Whatever it says, it says. If you want to produce it, if it is a Government document, produce it. The document speaks for itself. BY MR. EARL CHERNIAK, Q.C.: We will produce it in due course. BY ROGER E. BAKER, Q.C.: That is your option. BY MR. EARL CHERNIAK, Q.C.: Q. Did you make any revisions on the basis of the criticism that the negative reviewer made of your... A. We, I believe the editor wrote us a letter with the reviews attached and indicated that response was needed to the criticism and revisions, if necessary, and we followed the editor's instructions in that regard. A. Well, what the editor said to you was "make such revisions as you think best" after doing the reviews. And one of your productions is the unrevised article that was submitted to the editor. What I would like to know is: Did you, in fact, apart from typographical errors, make any revision of the article which you originally submitted? BY MR. ROGER E. BAKER, Q.C.: Before the witness answers that question, you seem to have the letter and attachments from the editor in front of you, Mr. Cherniak... BY MR. EARL CHERNIAK, Q.C.: Yes, document 6826, or page 6826. BY MR. ROGER E. BAKER, Q.C.: Have you got a copy of that for the witness? (Copy of the document supplied to the witness). BY THE WITNESS: A. I do recall that we did respond to this letter from the ditor with comments on the reviewer's suggestions. What I cannot recall is whether there were further changes based on the suggestions of the anonymous

320 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 20 3O 4O reviewer. Certainly all of the issues raised by the anonymous reviewers were addressed in the response to .... BY MR. EARL CHERNIAK, Q.C.: Q. Well, we don't have that response because that response has not been produced. Would you now produce it to us? A. I think we should be able to find a copy of it someplace. Q. So is the answer that you will produce it to me? A. Yes. Q. One thing that I did want to ask you. You indicated that the paper was rejected by the Canadian Medical Association Journal. Do you recollect that? Yes. A previous version of the paper was Ao rejected, yes. Q. A. Q. A. Q. Do you have that version? I don't have it with me. Could you produce that version? I expect we can find it, yes. Thank you. And it was rejected some time in '86, is that correct? A. I don't recall. Perhaps. Q. Well, just to get the date, I am looking at a letter dated November 5th, 1986, your document number 6818. Would that be when it was rejected? A. Yes. Q. And did you read the objections to the paper that were raised by the examiner? A. Yes, I did. Q. Were changes based on those criticisms or not? A. Yes, they were. Q. We will see that when we see the other version. And then, subsequently, this new draft or different draft was submitted to the Canadian Journal of Public Health. Is Donald T. Wigle who is on their letterhead, is that the same Donald T. Wigle who is one of the authors of the paper? A. Yes, it is. Q. And I just can't read the letterhead here. What is on that journal? A. Don Wigle? Q. Yes. I just can't read his title. It is impossible to read. A. I think he is on the Editorial Review Board of the Journal.

321 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 20 30 4O Q. Is that an independent journal or is it an arm of the Government? A. No. It is a journal published by the Canadian Public Health Association. Q. Now, are there ongoing studies within the Department of Health and Welfare as to the effect of something called Radon on lung cancer deaths in Canada? A. There are colleagues in my Department that examine scientific issues around this question. I am not aware, however, of what particular studies there might be conducted at this moment. Q. For instance, in 1988 was there a workshop for smoking that was held in Toronto that was referred to in your document 5817, a summary of which was set out in a letter that you, among others, received a copy of? And on the second page you will see that Mr. Neil Collishaw was one of the recipients of a copy of this letter. A. Yes, I am aware that such a workshop was held. Q. And if you look further in the group of documents that I am now showing you, you will see at page 5821 is the conclusions and recommendations of the workshop that is mentioned in the letter to you. Do you see that? BY MR. ROGER E. BAKER, Q.C.: It is not a letter to Mr. Collishaw. a copy of a letter... It is BY MR. EARL CHERNIAK, Q.C.: A copy which was recived by Mr. Collishaw. BY THE WITNESS: A. Yes. Q. And was this a workshop that was in some way sponsored by the Department of Health and Welfare? A. I believe some money was provided for staging the workshop from the Environmental Health Directorate, although not from the Tobacco Products Unit. Q. And was one of the things that was discussed and recommended in that survey the impact of Radon decay products in Canadian homes, in relationship to Radon decay products in Canadian homes to lung cancer? BY MR. ROGER E. BAKER, Q.C.: Are you asking this witness to speculate about

322 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 20 30 40 fact, discussed on a matter of speculation. discussed... BY MR. ROGER E. BAKER, Q.C.: He wasn't there. BY MR. EARL CHERNIAK, Q.C.: something that was discussed at a workshop that he didn't attend? BY MR. EARL CHERNIAK, Q.C.: I am not asking him to speculate at all. BY MR. ROGER E. BAKER, Q.C.: What are you asking him to do, then? BY MR. EARL CHERNIAK, Q.C.: I am asking him whether that matter was, in It was either We are talking about a workshop that was either funded by the Department of Health and Welfare and one that we know the results of which were brought to his attention. And we are talking about a document that is part of the productions of the Government of Canada. BY MR. ROGER E. BAKER, Q.C.: Whatever the document says, it says. BY MR. EARL CHERNIAK, Q.C.: But I want to find out this witness's information on studies that are ongoing in his department, the department of which he is a member, dealing with the questiion of lung cancer deaths attributable to Radon decay products in Canada. BY MR. ROGER E. BAKER, Q.C.: So, why don't you ask him a specific question and see if he knows the answer if the question is relevant. BY MR. EARL CHERNIAK, Q.C.: _ I thought that was what I was doing.

323 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 20 30 4O BY MR. ROGER E. BAKER, Q.C.: No, I am not aware that that is what you were doing by your question. BY MR. EARL CHERNIAK, Q.C.: Q. Are you aware that the question of the relationship of Radon decay products to lung cancer deaths in Canada is under active study at this time by the Department of Health and Welfare? A. I am aware that there are people who are concerned about this issue. I am not aware whether they are doing specific studies in this area at this time or not. Q. particulars. A. Q. appears:- Well, look at page 5822 of your production Do you have 5822? Yes. At the very top of the page this statement "Such a study would also provide a most useful opportunity for studying the contribution for exposure to Radon decay products in the home to lung cancer risk in non-smokers in the Canadian context and, therefore, assessment of Radon exposures should be included in such a study". A. Yes. Q. Is there such a study going on in Canada now, to your knowledge? A. Not to my knowledge. Q. Are you aware of a study that is going on in Manitoba that is referred to at page 5834 of the same documents? Let us just start at the bottom of page 5833, the previous page, where this report indicates the following:- "On the basis of the BEIR 4 model it has been estimated that as many as 1,015 cases of lung cancer occurring each year in males might be attributable to Radon decay products exposure in the home. However, as yet little epidemiologic evidence

324 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak I0 20 3O 4O has been reported from studies carried out on individuals exposed in the home environment. An ongoing control case study of R.d.Po in lung cancer is being conducted in Manitoba funded by Health and Welfare Canada. This study is being carried out in both smokers and non-smokers". Have I now directed you to the Health and Welfare Study that I had in mind. A. This is the one you have in mind, yes. Q. And is that study, in fact, going on now in Manitoba? A. I don't know. I am not familiar with that study. Q. Would you find out for me what, in fact, has occurred since this report was written with respect to that study by Health and Welfare Canada? A. Yes. Q. Thank you. And in your estimate of mortality attributable to tobacco use in Canada, did you take into account or did any of the people who made the estimates upon which you relied, take into account lung cancer deaths from Radon in Canada? A. It is not relevant to the study that we did. Q. If it turned out that there a significant number of lung cancer deaths, lung cancers in deaths following lung cancer attributable to Radon decay products, would you not agree that that would affect your figures on mortality from the tobacco products? BY MR. ROGER E. BAKER, Q.C.: Mr. Cherniak, you are now asking the witness to express an opinion on the methodology of epidemiology and that I refuse to allow him to do given that he is not qualified as an expert. It is irrelevant. BY MR. EARL CHERNIAK, Q.C.: So you are refusing to allow him to answer that question? BY MR. ROGER E. BAKER, Q.C.: That is correct. the question. I am refusing to let him answer

325 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak I0 2O 3O 4O BY MR. EARL CHERNIAK, Q.C.: Q. Did you take into account in your survey in any way lung cancer deaths attributable to Radon decay products in Canada in the paper that you published in the Journal of Public Health? BY MR. ROGER E. BAKER, Q.C.: I think he has already answered the question, Mr. Cherniak. BY MR. EARL CHERNIAK, Q.C.: Was his answer "no"? BY MR. ROGER E. BAKER, Q.C.: As I understood it. BY MR. EARL CHERNIAK, Q.C.: Q. You have also published a paper dealing with the exposure of involuntary smokers to the toxic components of tobacco smoke, and you'll find that at Tab 4 of the book that we have provided you with. Am I correct? A. This is a paper I co-authored with a couple of my colleagues in Health and Welfare. Q. And that was published in 19877 A. Yes. Q. And was there a previous draft of that paper that was submitted for publication to various journals at an earlier date. And to refresh your memory, if you look at Tab 18. BY MR. ROGER E. BAKER, Q.C.: Don't bother. Mr. Cherniak, I have let you go quite far with the last document. This man is not an expert. Whether he has published an article and whether or not it was previously rejected by another journal, and whether there was a previous draft of the document is irrelevant. Given that he is not pro-offered as an expert, nor is he qualified as an expert, his articles and his previous drafts of those articles are irrelevant. His opinions are irrelevant and not admissible. And I am going to instruct the witness to refuse to answer questions made on he document in Tab 4 or 5, or whatever it is.

326 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 40 BY MR. EARL CHERNIAK, Q.C.: So , I take it, then, that because Mr. Collishaw is not an expert on any of the matters that are referred to in this article at Tab 4, that you are simply not going to permit him to answer any questions with repsect to it. BY MR. ROGER E. BAKER, Q.C.: His opinions are irrelevant, Mr. Cherniak. I sai@ that fifty times in the last 24 hours, if I have said it once, and therefore not admissible. He is not an expert witness. BY MR. EARL CHERNIAK, Q.C.: I don't think your opinions are any more useful because you say them loudly, Mr. Baker. BY MR. ROGER E. BAKER, Q.C.: That may be so. The only opinion that is really important is that of the trial Judge. And if you care to seek a ruling, I am prepared to go down to the Courthouse with you. You seem to be reluctant to do that. BY MR. EARL CHERNIAK, Q.C.: You seem to be awfully anxious that we do that. BY MR. ROGER E. BAKER, Q.C.: I am not particularly anxious but I am getting quite bored by having to repeat the same series of objections. And if you were genuinely interested in the answers, it seems to me that you would seek such a ruling from the trial Judge. BY MR. EARL CHERNIAK, Q.C.: I suggest that anyone who is bored leave. Q. Mr. Collishaw, this paper at Tab 4 was it prepared during the course of your duties on a day-to-day basis with the Department of Health and Welfare? BY MR. ROGER E. BAKER, Q.C.: Objection. Irrelevant. Don't answer the question.

327 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 4O BY MR. EARL CHERNIAK, Q.C.: Q. Was the research and the material on which it was based paid for and obtained by and with Government funds? BY MR. ROGER E. BAKER, Q.C.: Objection. Don't answer the question. BY MR. EARL CHERNIAK, Q.C.: Okay. Q. Mr. Collishaw, was there at some time within the Department an issue, a discussion, change of correspondence, or memos with respect to the question as to whether the use of tobacco products were simply characterized as an addiction or a dependence? A. I believe that there was some exchange of correspondence among officials of the Department on the subject. Q. And was it the view of... you mentioned a man called A.J. Liston yesterday as, I believe, one of your superiors, is that correct? A. Yes, he is the Assistant Deputy Minister of the Health Production Branch. Q. And is he still? A. Yes. Q. And was it his view that the appropriate characterization of the use of tobacco by persons who used it was dependence and not addiction? BY MR. ROGER E. BAKER, Q.C.: If you are reading from a document of the Department, Mr. Cherniak, perhaps it would be appropriate for you to show a copy of the document to the witness. BY MR. EARL CHERNIAK, Q.C.: If he needs it to refresh his memory. BY MR. ROGER E. BAKER, Q.C.: It is the procedure that we generally use in Quebec, Mr. Cherniak. BY MR. EARL CHERNIAK, Q.C. : Do you need to look at the document to refresh your memory?

328 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 4O BY THE WITNESS: I would appreciate looking at it, yes. BY MR. COLIN K. IRVING: Mr. Cherniak, doesn't need any instruction on those matters, Mr. Baker. The procedure we use in Quebec is the same as everywhere else. The witness does not need to be shown it unless he asks for it. BY MR. ROGER E. BAKER, Q.C.: It is a matter of common courtesy, Mr. Irving. BY MR. COLIN K. IRVING: Well, you might demonstrate a little common courtesy yourself, which you have not been doing. BY MR. EARL CHERNIAK, Q.C.: I am showing you a document which is 3393 from the Government productions, a memo from Dr. Liston. A. Yes. Q. Does that refresh your memory? A. Yes. Q. And was it, in fact, the view of Dr. Liston that the appropriate description of the use of tobacco products of those who used them was dependence and not addiction? BY MR. ROGER E. BAKER, Q.C. : Objection. The document speaks for itself. If you are interested in obtaining an interpretation of the document at an appropriate time you might want to call upon Dr. Liston. But don't ask this witness to do it for you. BY MR. EARL CHERNIAK, Q.C.: All right. Q. Then, just to follow this through, was there a comment upon Dr. Liston's description by a Dr. Somers, and I am showing you page 444 of your own productions where Dr. Somers indicates that he prefers something that he calls the "pejorative term" Do you see that?

329 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 20 30 40 BY MR. ROGER E. BAKER, Q.C.: This document that you have just shown the witness doesn't necessarily make reference to the previous document number 3393, Mr. Cherniak. BY MR. EARL CHERNIAK, Q.C.: I want to ask the witness is he aware that it does or it does not. Why don't you get your productions out because you will see the same memo that I showed him at a different part of your productions. But if you look at the very next page of your productions, page 445, you will see the very same memo. Does that help you? BY MR. ROGER E. BAKER, Q.C.: What is your question, Mr. Cherniak? BY MR. EARL CHERNIAK, Q.C.: Q. The question is: Did Dr. Somers make the comment, and is that Dr. Somers writing, and did he make the comment that he in respect to what Dr. Liston said that he, Dr. Somers,prefers what Dr. Somers characterised as the"pejorative view"? BY MR. ROGER E. BAKER, Q.C.: I make the same objection. Mr. Cherniak, document 444 has printed at the top "Dr. E. Somers" Whatever the document says, it says it. It is not open to you to ask this witness to interpret that document. BY MR. EARL CHERNIAK, Q.C.: I am advised of that. Now I am going to ask the witness to interpret his own document. Q. And I am showing you your own document 443. First of all, do you recognize your own initials on there? A. Yes, I do. Q. Did you sign that document? Ao I initialed it. Q. There is handwriting on it that says "Byron and I share Dr. Somers' view" Is that your handwriting? A. Yes, it is. Q. And is the "N.E.C." underneath it your initials? A. Yes, and my handwriting. Q. And sharing Dr. Somers view, did you mean

330 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak I0 2O 30 4O to say by that that you share Dr. Somers view that the use of the pejorative term "addiction" is the appropriate term? I just want to understand what that means? A. Yes. Q. And I take it that it is still your view that the pejorative term is the one to use? BY ROGER E. BAKER, Q.C.: Objection. His opinions are irrelevant. BY MR. EARL CHERNIAK, Q.C.: I am going to produce these three pages, 443, 444 and 445 of the Government productions as the next RJR Exhibit - (RJR-14). Q. Now, I want to come back, Mr. Collishaw, to your defence, the written contestation, paragraph i0. You probably spent a little time on that yesterday. And there are parts of your defence - and perhaps I will wait until you get a copy in front of you - the contestation. A. Yes, I have it. Q. I just want to refer you to the subject matter that I am going to ask you about so that you have it in your mind. The contestation talks about in 10(A) things that are now accepted in the, or information that is now accepted in the scientific and medical communities about the consumption of tobacco products. And in 10(B) there is a reference to serious health problems and the urgent public health issue. And in paragraph 12 there is a reference to what is common knowledge about the consumption of tobacco products. Okay? Do you have in mind now the areas of the contestation that I am speaking of? A. Yes. Q. And would I be correct that the accepted knowledge or the common knowledge that is referred to in those paragraphs that I have directed your attention to is the kind of information that is contained in the 1989 Surgeon General's Report of the United States Surgeon General? A. It is a very large document. I expect not everyone has read it. So I wouldn't say that it contains in its entirety things that could be called common knowledge. But things that have been known to the scientific community and disseminated to the public at large are contained in there as well such as smoking causes lung cancer. Q. The reason, of course, that I ask you about the 1989 Surgeon General's Report - I have a copy here if you want to refresh your memory about it - is that

331 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 4O as I understand the 1989 Surgeon General's Report, it is really a survey, a 25th anniversary report of the first Surgeon General's Report dealing with tobacco. And, as I understand it, it contains really sort of a summary and a compilation of the information that is contained in all the previous Surgeon General's reports dealing with tobacco. Is that a fair statement? BY MR. ROGER E. BAKER, Q.C.: Of what possible relevance is Mr. Collishaw's understanding or opinion on what is contained in the 1988 Surgeon General's Report, Mr. Cherniak. BY MR. EARL CHERNIAK, Q.C.: Well, Mr. Collishaw, as you now, is produced as the witness that we can examine for discovery on behalf of the Government. And I simply want to know where we find what is now accepted in the scientific and medical communities and what is common knowledge... BY MR. ROGER E. BAKER, Q.C.: It might interest you to do a verification of the dates, Mr. Cherniak. This document was signed on the 14th October, 1988, and the U.S. Surgeon General's Report of 1989 was made public on the 10th January, 1989. So... BY MR. EARL CHERNIAK, Q.C.: I appreciate that but, as I understand it, and I may be wrong, but Mr. Collishaw, based on his job description seemed to me to be in the best position to know this of anybody. BY MR. ROGER E. BAKER, Q.C.: That is an assumption that you are making, Mr. Cherniak. BY MR. EARL CHERNIAK, Q.C.: Well, it was you who submitted the job description. BY MR. ROGER E. BAKER, Q.C.: itself. No, it was.., the job description speaks for

332 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 4O BY MR. EARL CHERNIAK, Q.C.: Q. What I want to know is, is the type of common knowledge - and I am entitled to know what you mean by the pleadings - is the type of common knowledge that is referred to and the information that is accepted in the scientific and medical community - I appreciate there are others because it is a very large document, there are lots of things in it - but included in that document, would we find what is now accepted in the scientific and medical community throughout the world about the consumption of tobacco products and its health consequences, would we find it there? A. You can find certainly a good part of it although there might be other sources to look for as well. Q. We will come back to that in a moment. Would we find in that report the bulk of what is common knowledge about the dangers of the consumption of tobacco products, would we find that? BY MR. ROGER E. BAKER, Q.C.: I object to the question, Mr. Cherniak. You are referring the witness to a report that was drafted four months, that was produced four months after the contestation was produced. It has not been established that this man is an expert in medical affairs. You are referring to the U.S. Surgeon General's Report. You have not established that he has read it; you have not established that even if he had read it it would be relevant; and you have not established that his opinion would be relevant because he is not an expert on any of these issues to which you have just made reference. So the fact that he is a representative of the Department of Health and Welfare doesn't make your question any more appropriate, Mr. Cherniak. He is not a medical witness. BY MR. EARL CHERNIAK, Q.C.: We are not talking expertise. We were talking about what is meant by and where we find the information in support of the Government's pleading. BY Mr. ROGER E. BAKER, Q.C.: Yes. And the pleading was drafted in October of 1988 and you are referring the witness to a document that was produced publicly in 1989.

333 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 30 40 BY MR. EARL CHERNIAK, Q.C.: Q. Have you read the 1989 Surgeon General's Report? A. Yes, I have. Q. Okay. Now we have established that. Would you agree with me that the bulk of what is now accepted in the scientific and medical communities throughout the world about the health consequences of the consumption of tobacco products is contained within that Surgeon General's Report? BY MR. ROGER E. BAKER, Q.C.: His opinion in respect of what is found in the U.S. Surgeon General's Report is irrelevant. If you want to produce it, produce it, Mr. Cherniak, but what Mr. Collishaw's views or opinions on that report are and how that particular report relates to the proceedings are not receivable. BY MR. EARL CHERNIAK, Q.C.: Well, on an examination for discovery I take it that we are entitled to find out where we find what is now accepted in the scientific and medical communities about the matters contained in paragraphe 10(A). The witness indicated on the record a moment that we can find the bulk of it in the U.S. Surgeon General's Report. Q. Is there any place else that we would have to look? BY MR. ROGER E. BAKER, Q.C. : He said "reports", plural. There have been twenty five (25) of them, as you know, Mr. Cherniak. BY MR. EARL CHERNIAK] Q.C.: I am not sure that that is right, but is that the answer? That we will find them in the U.S. Surgeon Generals' Reports 1964 to 1989. Would that be fair? BY THE WITNESS: A. That would be one place to look. There are other sources, of course. Q. There are other sources. But, if we wanted to find - there may be all kinds of sources - but if we

334 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 20 30 4O wanted to find what was accepted in the scientific and medical communities, could we find virtually all of it, or perhaps all of it, in the Reports, plural, of the Surgeon General of the United States? BY MR. ROGER E. BAKER, Q.C.: The same objection. This man is not a specialist on analysis nor is he qualified as such on the U.S. Surgeon General's Report. And to ask him to pinpoint the pleadings to a series of reports and pin him down to that extent is .... I will simply make the objection and instruct the witness not to answer the question. BY MR. EARL CHERNIAK, Q.C.: But the man is produced as a representative of the Federal Government and, in that capacity, I want to know whether we can find out what is accepted in the scientific community and medical communities. If there is something else, please let me now? BY MR. ROGER E. BAKER, Q.C.: You will find out from the Crown's experts at trial, Mr. Cherniak. You are not going to drive right through to the Surgeon General's Reports for the purpose of this examination for pinning down Section i0 of the contestation. He is not an expert witness, I repeat. BY MR. EARL CHERNIAK, Q.C.: We are entitled to know now where we find what is accepted in the scientific and medical communities. Is there any place that we would have to look outside the Surgeon General's Report .... BY MR. ROGER Eo BAKER, QoC.: Again, I object. I object to the question. There are World Health Organizations, there are tens of thousands of medical reports all over the world in the last twenty five years, as you know, Mr. Cherniak. If you want the bibiography that is in the basement of the Department of Health and Welfare, we will give it to you, if you want it. But don't ask him where you are supposed to look.

335 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 4O BY MR. EARL CHERNIAK, QoC.: Well, we have already got part of his answer. Q. In Canada have there been certain studies done in whole or in part dealing with the health effects of tobacco by or on behalf of the Canadian Government? A. Yes. Q. And is the Isabelle report one? A. Well, that is a scientific study. It is a report of a Parliamentary Committee. Q. And is the LeDain Report another? A. Well, the Isabelle Report was a report of a Parliamentary Committee and not a scientific study. And the LeDain Report was a report of Royal Commission. Q. And in those two studies, did they, among other things, review, and I say among other things, what was accepted in the scientific and medical communities throughout the world about the consumption of tobacco products? BY MR. ROGER E. BAKER, Q.C.: Subject to the objection that the document speaks for itself, Mr. Cherniak, I will let the witness go a bit, but you don't need him to tell you what was the subject of those two reports, and you know it. BY MR. EARL CHERNIAK, QoC.: Thank you. But I am happy to hear what the witness tells me about it. Would you... BY THE WITNESS: A. The Isabelle Report did make reference to scientific information as it existed at the time concerning smoking and health. The LeDain Commission Report, as I recall it, did not deal extensively with tobacco, although some reference was made. For a more complete answer, I would have to go back and look at it. It has been some time since I looked at the report. Q. And are there other reports by or on behalf of the Canadian Government more recent than that that deal with, in part, what is now accepted in the scientific and medical communities with respect to the health consequences of the consumption of tobacco products and what is common knowledge about the consumption of tobacco products? A. Yes, there are. Q° Would you list them for me?

336 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 20 3O 40 A. There was a study done fairly early on in the 1960s on smoking and health among Canadian veterans. Earlier today we discussed the mortality follow up of the Nutrition Canada Survey that deals with health consequences of tobacco use. And there have been a number of smaller local surveys dealing with the health consequences of tobacco use in Canada as well but not necessarily sponsored by the Canadian Government. Q. Would it be possible for you to list those for me. Not today but could you just provide me with a list of them? A. Yes, we can make that undertaking. Q. Thank you. And would they, generally speaking, cover the bulk of what is - to use the words of the pleading - "what is now accepted in the scientific and medical communities about the health consequences of the consumption of tobacco products". BY MR. ROGER E. BAKER, Q.C.: I think I am going to object to that. You are asking the witness who is not capable of listing all of the studies which he may be producing assuming he finds them to characterize what the subject of those studies are and how they relate to the pleadings, Mr. Cherniak. So, the witness has made the undertaking to produce the documents. He will. When you read them yourselfl you will determine yourself whether they fall within the ambit of Section i0, A, B and C. BY MR. EARL CHERNIAK, Q.C.: Q. No doubt. But would it be fair to say, Mr. Collishaw, that at some point during your many years with the Department you have read each and every one of the studies that you have mentioned to me? A. I have read them in whole or in part the ones I mentioned, yes. Q. And with the reservation that, of course, when you get out the specific ones you will have to refresh your memory on them and if there is anything that comes up when you do so, I am sure you will ~advise me. With that reservation, would it be fair to say that the culmination of those reports would cover the bulk of what is now accepted in the scientific and .... BY MR. ROGER E. BAKER, Q.C.: _ Objection. Don't answer the question for the

337 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 20 30 40 same reason. You are asking him (a) to speculate what is in documents he doesn't have before him; you asking him virtually for an opinion which he is not qualified to give you in respect of medical reports, Mr. Cherniak. He is not a medical expert. Do not answer the question, Mr. Collishaw. BY MR. EARL CHERNIAK, Q.C.: The balance of the question is: Q. Would those reports contain the bulk of what is now accepted in the scientific and medical communities with respect to health consequences of the tobacco consumption? That is the balance of the question. Now, the next question is: Would you undertake, once you have reviewed those reports, a number of which you have listed or have undertaken to get, would you after reviewing them advise me if they do, in fact, contain the bulk of those matters that are accepted in the medical and scientific communities of .... BY MR. ROGER E. BAKER, Q.C.: No, you will not make that undertaking, Mr. Cherniak. BY MR. EARL CHERNIAK, QoC.: Q. Mr. Collishaw, dealing with the question of common knowledge, is it your view that the knowledge that it is, in fact, common knowledge that the consumption of tobacco products - and I am using the words of the pleading - is dangerous to a person's health? Is that your view? A. The use of tobacco products is very dangerous to your health. Q. I didn't ask you whether that was your view. I asked you whether it was your view that it was common knowledge that it was. BY MR. ROGER E. BAKER, Q.C.: You are asking him now as a citizen in respect of what is common knowledge as opposed to being an expert, Mr. Cherniak? BY MR. EARL CHERNIAK, Q.C.: - I am asking him as the representative of the

338 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 30 40 Department of Health and Welfare whether he agrees that it is common knowledge - I am simply reading .... BY MR. ROGER E. BAKER, Q.C.: Ask him whether he agrees with the allegation. BY MR. EARL CHERNIAK, Q.C.: Q. Do you agree with the allegation that it is common knowledge that the consumption of tobacco products is dangerous to a person's health? A. At that level of generality, yes. Q. And, as a matter of fact, did you not refer in one of your papers to a view that as long ago as 1925 that there was a reference in the school books that every Ontario student read about the dangers of tobacco use? Was that one of your articles? A. There was reference to a specific danger of tobacco use made at that time in the school books, yes, and I did refer to it in my papers. Q. So, it is your view, then, that the common knowledge that paragraph 12 speaks about is not only common knowledge but is common knowledge of quite ~ A. No. Common knowledge that we have now points to tobacco even being more hazardous than what it was commonly known to be in 1925. Q. But is the common knowledge about the dangers of Tobacco of a considerable long-standing? BY MR. ROGER E. BAKER, Q.C.: Mr. Cherniak, I object. Mr. Collishaw is not a pollster. He has been working for the Department for fifteen years. What the common knowledge was in the '20s, '30s, and '4Os may well be, I don't know, different from the common knowledge in the '70s and '80s. And it is not appropriate to have Mr. Collishaw speculate on the levels of common knowledge over a fifty or sixty years spread. BY MR. EARL CHERNIAK, Q.C.: I don't want him to speculate. his views. I just want BY MR. ROGER E. BAKER, Q.C.: His own opinions are no more valuable to this

339 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Mr. Cherniak i0 2O Court record than yours, mine, Mr. Irving, or anybody sitting at this table. And I mean no disrespect to anybody sitting at the table. BY MR. COLIN K. IRVING: That is a very interesting observation. BY MR. EARL CHERNIAK, Q.C.: That is all the questions I have. BY MR. COLIN K. IRVING: Well, perhaps it is time for lunch. BY MR. ROGER E. BAKER, Q.C.: Two o'clock. (ADJOURNMENT FOR LUNCH UNTIL 2:00 P.M.). ANN M. LLOYD Official Court Reporter 3O 40