Tobacco Documents Online

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