Tobacco Documents Online

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.v. 500-09-001296-912 .v. • '.'. 500-09-001297-9_1.0 .v. :.'::: :.:.: " " .v. Montreal .v. :!:!: :::::X.X<~6X.X.X.X+X.X~.X+X.X.X.X+X.:.X.X.X.X.X.X.X.:.>X.X.X.X.X.>X.X.X.X.E.X%X.:.X.:.X.X.X.X.X.X<.X .X.X.X.X.X.E.X.E.X.X.:.>X.X<.X.E+X.: ::::: .v. gn appel de deux jugements rendus le 26 juillet 1991, pac .v. :-:.: l'honorable juge Jean-Jude Chabot, de la Cour sup6rieure, ::::: X.: district de Montr6al. ... .v. Nos: 500-09-001296-912 C.a.M. - 500-05-009755-883 C.s.M. .:,:. -:':" LE PROCUREUR G~N~RAL DU CANADA ":':' :<.: v.. .v. APPELANT-Intim6 :':': :.:.: c. :-:.: .v. RJR-MacDONALD INC. :.. .v. INTIM~E-Recu@rante "'" -' ". - e t - .:.:. • v. LE PROCUREUR G~N~RAL Di] QUEBEC .v. :':': MIS EN CAUSE-Mis en cause :':': .v. Nos: 500-05-001297-910 C.a.M. - 500-05-009760-883 C.S.M. ::::: v.-V" LE PROCUREUR G~.N~.RAL DU CANADA .:.:- ::::: APPELANT- I n t i m6 ::::: :.:.: IMPERIAL TOBACCO LTD :2:22 • :-:. INTIM~E-Requ6rante .:.:. ":':" - e t - ":':" :':': LE PROCUREUR G~IN~IRAL DU QUEBEC :v i{!i MIS EN CAUSE-Mis en cause ::::: .:.:. D O S S I E R C O N J O I N T .v. .v. Volume IV: pages 340 ~ 540 .v. ":':" ( D4pos i t ions ) ::::: ::.::.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:~:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:~:.:.:~ :.:.:.:.:.:~:~:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:..~.:.:~:.:.:.:.:.:.:.:.:.:.:.: .:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:~:.>>X+>X°X° :.:<.. Bureau 1oo INC.le:e, coc,eu~ 1514', £66-4861 :.:-: MOr,t'e<. Cc H2Y ~81

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TABLE DES MATI~RES (i) Vol. Page ioril !3th, 1989 (Cont'd) EXAMINATION FOR DISCOVERY AFTER CONTESTATION OF NEIL E. COLLISHAW (CONT'D) NElL E. COLL!SHAW Cross-examination by Me Cherniak IV Cross-examination by Me irving IV Cause: 500-05-009760-883 C.s.M. ,.D~] l:~h, 1989 (Cont'd) EXAMIN.-._,ON FOR DISCOVERY AFTER CONTESTATION OF NEIL E. 340 349 COLLiSHAW (CONT'D) NEIL E. COLLISHAW Cross-examination by (Cont'd) Me Potter Asril !4th, 1989 EXAMINATION FOR DISCOVERY AFTER CONTESTATION OF NEIL E. i V 377 COLLT"''~'~_~:.-.. (CONT'D) NEIL E. COLLISHAW (Cont'd) Examination by Me Potter Argument Examination by Me Potter Argument Examination by Me Potter arcument Examination by Me Potter Argument Examination by Me Potter Argument Examination by Me Potter Argument Examination by Me Potter ADril 26th, 1989 EXAMINATION FOR DISCOVERY AFTER CONTESTATION OF NEIL E. IV iV IV IV IV IV !V IV IV IV IV IV IV 413 431 440 441 444 445 456 457 464 467 468 470 COLLISHAW (CONT'D)

TABLE DES MATI~RES Vol. Page NEIL E. COLLISHAW (Cont'd) Examination by Me Potter Argument Examination by Me Potter Argument Examination by Me Potter EXAMINATION ON AFFIDAVIT OF NEIL E. COLLISHAW NEIL E. COLLISHAW Cross-examination by Me Potter Argument IV 492 IV 506 IV 5O7 IV 5!1 IV 5!2 IV 523 IV 535

34O NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 40 April 13th, 1989 (P.M.) DEPOSITION OF MISTER NEIL E. COLLISHAW NEIL E. COLLISHAW UNDER THE SAME OATH CROSS-EXAMINATION BY MR. EARL CHERNIAK, Q.C.: (Cont'd) Q. I am continuing to deal with paragraphs i0 and 12 of the Contestation, dealing with the - what is accepted in the scientific and medical communities and what is common knowledge, and what this is pertinent to, just so we understand it, is the basis for that part of the preamble set out in paragraph 25 of the Contestation, that is the conclusive evidence implicating tobacco use in the incidence of certain diseases. What I'd like to know is, if you would undertake to provide for me all the reports, documents, or other matters that were actually put before either the Minister - either/or - either and including all of - the Minister, the Parliamentary Committee, Cabinet and Parliament, with respect to that which was accepted in the scientific and medical communities the urgent public health issue referred to in paragraph lO(b) and matters of common knowledge. Would you please provide me with a list of that material? BY MR. ROGER BAKER, Q.C.: Mr. Cherniak, I most respectfully decline that undertaking by the client under 36.3 of the Canada Evidence Act, what was put before the Cabinet, or a committee of the Cabinet, is subject to a privilege and you are not entitled to know. BY MR. EARL CHERNIAK, Q.C.: Of course my question was wider than that, it included the Cabinet and any Committees, but my question was wider than that because I included the Minister and Parliament and the Parliamentary Committee. BY MR. ROGER BAKER, Q.C.: Well, what was put before the Parliamentary

341 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak I0 2O 3O 4O Committee is, as you know, a matter of public record. BY MR. EARL CHERNIAK, Q.C.: I'd like an answer to my question. for the undertaking. I've asked For purposes of the record, I am advised that what was put before the Parliamentary Committee is all a matter of public record and that there were private matters, or private documents put before the Parliamentary Committee by department of government, including Health and Welfare. But the point is, what I want to know is, what I want to have the undertaking to have supplied to me so that I can fully understand the import and the meaning of those paragraphs of the Contestation. Please supply me with a list of the material that was put before those various branches of the government that I mentioned. BY MR. ROGER BAKER, Q.C.: Well, just so... BY MR. EARL CHERNIAK, Q.C.: I don't need a speech, I just want to know whether we will get that undertaking or not. BY MR. ROGER BAKER, Q.C.: Mr. Cherniak, I wasn't intending to make a speech. Part of what you've demanded is purely excludable under 36.3; Mr. Thibaudeau seemed to be suggesting to you, it's not that I overheard what he was saying, but he was saying that everything that was tendered - all that went on before the Parliamentary Committee is not public. I would like to understand that for the purpose of any undertaking, or qualified undertaking I can make; I am not trying to obstruct you on obtaining documents, Sir, I can assure you that which you are legally entitled to you will get. So, perhaps Mr. Thibaudeau can inform us as to what he is referring to. There were no in-camera sessions of the Committees, were there?

342 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 4O BY MR. EARL CHERNIAK, Q.C.: Of course, if we knew what we were referring to - this is my question, not Mr. Thibaudeau's - if we knew what we were referring to, no doubt it would not be necessary to ask the question. I am making specific reference to certain paragraphs of the Contestation. BY MR. ROGER BAKER, Q.C.: Uh-huh. BY MR. EARL CHERNIAK, Q.C.: I want to know what, if anything, was put before those branches of the government that relate to matters set out in paragraphsrlO and 12 of the Contestation. Please undertake to provide me a list of all information, written or in reports or otherwise, supplied those arms of the government that relate to matters in those paragraphs. BY MR. ROGER BAKER, Q.C.: I will give you a qualified undertaking, Mr. Cherniak; I will undertake to consider your request to the extent that it is permissible under the Canada Evidence Act. BY MR. EARL CHERNIAK, Q.C.: Well, will you undertake to supply me the documents, except to the extent that it is impermissible under the Canada Evidence Act? BY MR. ROGER BAKER, Q.C.: Well, many of the documents, I have no doubt, you are already in possession of. So that which is permissible... BY MR. EARL CHERNIAK, Q.C.: NO~ no... BY MR. ROGER BAKER, Q.C.: ... is it a list or documents...

343 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 20 3O 40 BY MR. EARL CHERNIAK, Q.C.: If I have - I want the list first. If I have the documents, obviously it is not necessary for me to get them again. What I want first is the list and then, if there are documents, of course, that we don't have, then I will want production of them next. BY MR. ROGER BAKER, Q.C.: As I say, I will consider the request but I am not prepared at this time to allow the client to make an undertaking. BY MR. EARL CHERNIAK, Q.C.: Okay. (TO WITNESS): Q. Now, you - Mr. Collishaw, your counsel has indicated that he takes the position that you are not qualified to discuss what is, or what is not accepted in the scientific and medical communities with respect to the health considerations as to tobacco products, or to comment on what is in the common knowledge with respect to the consumption of - I should say the dangers of the consumption of tobacco products. BY MR. ROGER BAKER, Q.C.: That is not what I have said at all... BY MR. EARL CHERNIAK, Q.C.: I haven't asked the question yet. BY MR. ROGER BAKER, Q.C.: Mr. Cherniak, you are... BY MR. EARL CHERNIAK, Q.C.: I haven't asked... BY MR. ROGER BAKER, Q.C.: ... mischaracterizing what I have said this morning and yesterday.

344 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak !0 2O 3O 4O BY MR. EARL CHERNIAK, Q.C.: I characterized it quite completely. Anyway, I haven't asked my question yet; I'm still in the process of asking it. (TO WITNESS): Q. Will you please advise me as to who in the Government of Canada, if there exists any such person, is capable of answering questions for me, so that I can be fully advised about what it is that is now accepted in medical communities throughout the world about the health concerns relating to the consumption of tobacco products. First of all, are you aware of anyone in the Government of Canada that has the expertise such that he, or she, could tell me what that is" BY MR. ROGE~ BAKER, Q.C.: The... BY MR. EARL CHERNIAK, Q.C.: A perfectly reasonable question; I want to know whether he knows of anyone in the Government of Canada that is qualified to comment on those issues. Now, surely, you'll let the witness answer that question. BY MR. ROGER BAKER, Q.C.: It seems reasonable, Mr. Cherniak. BY MR. EARL CHERNIAK, Q.C.: yes. (TO WITNESS): Q. Is there someone Sir? A. The Department of National Health and Welfare employs a number of epidemiologists, who bear formal qualifications that would... Q. Well name the two most senior of them. A. Don Wigle would be an epidemiologist who could comment on such matters.

345 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 20 3O 4O Q. All right, he is one. Is he the most senior one in the department? A. I believe so, yes. Q. All right, and who would be the next senior person in the department; I don't care whether it's an epidemiologist or what their qualifications are, I want to know ones who can comment on what is accepted in the scientific and medical communities in the wording of paragraph I0 that I have been reading? Now you've us Mr. Wigle - is it Dr. Wigle or Mr. Wigle? A. Dr. Wigle. Q. Dr. Wigle is one; who would be an equally senior, more senior, or just like senior person? A. Dr. Yang Mao. Q. Would you spell that for us please? A. M-A-O. Q. Y-A-N-G? A. Y-A-N-G, Q. And what is his position please? A. I am not sure of his exact title... Q. Do the best you can. A .... but he works for Don Wigle. Q. Works for Don Wigle? A. Works in the - in the Surveillance and Risk Assessment Group headed by Dr. Wigle. Q. What is Dr. Liston, who seems to be superior to both of you... A. Dr. Liston is the Assistant Deputy Minister and Chief Administrative head of the Health Protection Branch. I understood you were looking for technical expertise regarding this... Q. Well, what I want to know is, would or would not Dr. Liston be in a position to tell us what is accepted in the scientific and medical communities within the meaning of paragraphe i0. BY MR. ROGER BAKER, Q.C.: Well, you are asking the witness to guess but I am telling you now... BY MR. EARL CHERNIAK, Q.C.: Surely, this makes a good guess. BY MR. ROGER BAKER, Q.C.: ... Mr. Cherniak, whether it's Dr. Wigle or

346 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 4O Dr. Liston, they are still employees of the Government of Canada and in respect to their opinions as to what is behind i0 and others of the Contestation, the expert evidence will be made at trial... BY MR. EARL CHERNIAK, Q.C.: Of course. BY MR. ROGER BAKER, Q.C.: ... and it's not going to be made during the examination on discovery, as you know. BY MR. EARL CHERNIAK, Q.C.: Of course, I'm not questioning any of those people now; I am simply asking this witness who it is in the government who. can comment, who would have the expertise to be able to comment, whether they'd be permitted to, or not, is a different issue, but who would have the expertise to be able to comment. He has given us two names and I am now asking about Dr. Liston. (TO WITNESS): Q. What about Dr. Liston, is he qualified to comment on those matters? BY MR. ROGER BAKER, Q.C.: I don't think it is open to this witness to give an opinion as to whether Dr. Liston is qualified to do something, Mr. Cherniak. BY MR. EARL CHERNIAK, Q.C.: Would you not think he could tell me what Dr. Liston's ~ualifications... BY MR. ROGER BAKER, Q.C.: What his qualifications are... BY MR. EARL CHERNIAK, Q.C.: ... qualified or not?

347 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 4O BY MR. ROGER BAKER, Q.C.: ... or are not is irrelevant. BY MR. EARL CHERNIAK, Q.C.: Well, he's told me about two other persons' qualifications, surely he can... BY MR. ROGER BAKER, Q.C.: If you want to know - do you want a list of the employees of the Department of Health and Welfare? BY MR. EARL CHERNIAK, Q.C.: Of course, that's not what I'm asking. But let's get a yes or no answer to this question. (TO WITNESS): Q. Can you tell me whether - don't tell me whether he is or not - but would you be able to tell me, if I were to ask you whether Dr. Liston has or does not have the qualifications? BY MR. ROGER BAKER, Q.C.: It's a matter of opinion. BY MR. EARL CHERNIAK, Q.C. : It's a perfectly reasonable question. I want to know whether this... BY MR. ROGER BAKER, Q.C.: It's equally - whether it's reasonable or not from your perspective, Mr. Cherniak, it's simply not relevant. BY MR. EARL CHERNIAK, Q.C.: But there's no point to - you know, if the man says: "I don't know"; "I wouldn't know", then we don't have to pursue it. BY MR. ROGER BAKER, Q.C.: But whether he knows or not, you are going down

348 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak i0 2O 3O 4O a path that I can assure you is going to lead to nowhere, because if you had Dr. Wigle in the box, he is a government employee and his opinion is not receivable, and I'll be making exactly the same objection. BY MR. EARL CHERNIAK, Q.C.: That's my problem, isn't it? (TO WITNESS): Q. Can you answer the question about Dr. Liston's qualifications? A. I am actually unsure what his professional qualifications are, other than I know he is not an epidemiologist by training. Q. All right. Can you give me one other name in the department, either senior or junior, you know, the most senior person, other than the two that you named, Dr. Mao and Dr. Wigle, who would have the qualifications to talk about these matters? BY MR. ROGER BAKER, Q.C.: Do not express an opinion on whether somebody in the department has qualifications to express an opinion on the matters which Mr. Cherniak is referring to. BY MR. EARL CHERNIAK, Q.C.: Q. With that limitation would you give the name please - one more name? BY MR. ROGER BAKER, Q.C.: (TO WITNESS): You want the name, a third name of the person with a medical degree in the Department of Health and Welfare, you are free to go right ahead but do not attach any opinion to it, or express any views on their qualifications. BY MR. EARL CHERNIAK, Q.C.: Q. Can you help us, Mr. Collishaw? A. Another epidemiologist who works in the Epidemiology group under the direction of Dr. Wigle is Greg Sherman. Q. All these people are based in Ottawa?

349 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Cherniak & Me Irving i0 2O 3O 4O A. Yes. BY MR. EARL CHERNIAK, Q.C.: Those are my questions. Thank you. CROSS-EXAMINATION BY MR. COLIN IRVING: (Cont'd) Q. Mr. Collishaw, I have just a few more questions following on those which I put to you yesterday. First of all, would you look at the green book in front of you and turn to Tab 16. That document is entitled "Application to Regulate Tobacco Products Under the Hazardous Products Act By Physicians for a Smoke-Free Canada Commentary." And it has your name at the bottom of the face page. Is that a commentary which you prepared, Mr. Collishaw? A. It appears to be; I actually don't recall preparing this document, but I would... Q. Would you take a moment and have a look at it? A. Yes, I've looked at it. Q. Now that you have read it through, do you recollect that that's a commentary which you prepared as part of your duties within the department? A. Yes. Q. Yes. And you will note that it is dated May 12th, 1986. A. Yes. Q. Would you look please at the first page after the face page. At the bottom of that page, do I take it that when that paragraph opens with the words: "In Part III-5(f). Data on Somking Among Norwegian Youth.." and so on there, that that is a reference to Part II-5(f) of the application made by physicians for a smoke-free Canada? A. I believe so, yes. Q. And what follows is your comment on that particular part of that application? A. Yes. Q. So I read on, I am quoting: "However, the changes cited are based on small samples

35O NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 20 3O 40 of the narrow age range (13 to 15) of adolescents. In 1984, 27% of Norwegian and 22% of Norwegian girls aged 16 to 20 are reported smoking daily." And then it goes on to deal with Canadian statistics, and further down on page 2 in that paragraph I see the following: "Relative to other industrialized countries, Norway has a very low rate of tobacco consumption. It also has the longest experience with an effective prohibition of tobacco advertising. However, neither data on changes in smoking_prevalence among youth nor changes in overall tobacco consumption in that country offers compelling evidence that banning tobacco advertising reduces either smoking by youths or overall tobacco consumption. The evidence is suggestive but not conclusive." Now is that passage, which I have just read, a conclusion reached by you, Mr. Collishaw, and expressed in this memorandum? BY MR. ROGER BAKER, Q.C.: Mr. Irving, the witness has already said that he wrote the paper. Any questions on that paper in respect of an opinion expressed by him, we object to. (TO WITNESS): Do not answer the question. BY MR. COLIN IRVING: Q. Then, in the middle of page 2, you'll see a reference to Part II-5(f) again, and the words: "Evidence is presented that

351 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving 10 2O 3O 40 children are most likely to smoke the most heavily promoted brands. Several studies in difference countries have all reached this conclusion. However, the most heavily reported brands are also the most widely used, suggesting that it is also possible that children are influenced by what they see other people smoking, perhaps more so than advertising expenditure by brand." Can you tell me, Mr. Collishaw, what particular studies you refer to in that paragraph? BY MR. ROGER BAKER, Q.C.: Same objection. (TO WITNESS): Do not answer the question. BY MR. COLIN IRVING: Well, it wasn't the same question so I don't quite see how it can be the same objection. BY MR. ROGER BAKER, Q.C.: it's a paper by a man who is not an expert and what he has to say on the subject as a non-expert witness, as a member or as an employee of the Department of Health and Welfare is irrelevant and not admissible. BY MR. COLIN IRVING: Q. Fact is, Mr. Collishaw, that as part of your duties you do keep in touch with trends in other countries on matters such as tobacco consumption is it not? A. Yes, I do. Q. It's part of your job? A. Yes. Q. And to the best of your ability, do I take it, you do carry out your duties?

352 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 20 3O 40 Statistics? A. Q. A. Q. A. Q. Yes, I do. And you have an M.A. degree which includes has been handed in, which relates to you; this: yes. And Sociology? Yes. Yes? Yes. I am reading from the Job Description which page 2, I read "In addition, the incumbent is expected to have extensive knowledge of the broad principles of a variety of other health and human sciences, such as demography, psychology, epidemiology, biochemistry, toxicology and clinical medicine. Incumbent must possess an inter disciplinary perspective and be able to apply this knowledge and perspective to the development of policy options regarding tobacco control." You agree that's your job description? A. Yes. Q. And that relates to you, does it not? A. Yes, it does. Q. Whatever your counsel may think, Mr. Collishaw, do you consider that you are up to your job? BY MR. ROGER BAKER, Q.C.: Oh that's a - that's a rather preposterous question, Mr. Irving, and it's not a matter of what his counsel thinks. His counsel repeatedly expressed the objection that as a non-expert witness and combined with being an employee of the department, his opinions as opinions are inadmissible. BY MR. COLIN IRVING: Baker. At the moment I hadn't asked an opinion, Mr.

353 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 2O 3O 4O BY MR. ROGER BAKER, Q.C.: Are you asking the man whether he does a good job? BY MR. COLIN IRVING: I am asking the man whether he fits the job description. (TO WITNESS): Q. I think the answer to that you've already given is yes, is it not? A. Yes. Q. Yes. Now may I come back to my question; as part of your duties and of the qualifications which you undoubtedly have, Mr. Collishaw, do you, did you, do you continue to monitor developments in other countries having to do with trends and smoking and reasons for smoking and reasons for stopping smoking and the effect of advertising bans and the like? A. I do the best I can in conjunction with the many other duties I have. Q. Now, on page 2 of the document we are now looking at, the opinion is expressed that I have already read to you and I won't read it again, about the correlation between heavily advertised brands and children smoking. My question - first question is did you consult any studies which were, to your knowledge, or did you make any inquiries to find out if there were any before you wrote that particular paragraph? BY MR. ROGER BAKER, Q.C.: I object. (TO WITNESS): Don't answer the question. BY MR. COLIN IRVING: Q. At the bottom of that page I read in Part III-5(i): "It is asserted that MacLeans has never carried a "major article on the health hazards

354 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving 10 2O 3O 4O of smoking." What constitutes a major article is open to interpretation. In fact MacLeans has carried many articles concerning smoking. Recently they published a two-page (inaudible) advertisement for the Non Smokers' Rights Association headed "The Thirty Thousand (inaudible) Sit on Hand". I needn't ask again if you wrote that, but was it you who did whatever research was necessary in order to make that comment? BY MR. ROGER BAKER, Q.C.: Any research done in connection with an opinion which is inherently (inaudible) to be inadmissible, it necessarily follows then, Mr. Irving, that the research that went behind it, or who did the research is equally irrelevant and equally unacceptable as evidence from Mr. Collishaw. BY MR. COLIN IRVING: Q. So, is it a fact, Mr. Collishaw that MacLeans has carried many articles concerning smoking, to your knowledge? A. To my knowledge? Yes. Q. And it is to your knowledge that the assertion that MacLeans has never carried a major article on smoking is incorrect, is it not, as you state there? A. Yes. Q. Yes. Now, on page 3 of that same document, there is a reference to Appendix A of the Physicians' Application, and then there is a blank with the words "Exempted under Section 21(1)(b) and 23, which I presume to be reference to the Access to Information Act. Were you consulted in the decision to exempt whatever was written there, under those sections of the Access to Information Act? A. I don't recall specifically. Normally I would be, but in this specific case I don't recall. Q. I would ask you, please, first of all to produce this article in its present form as Exhibit RJR-15. I will mark it on there but we will have to get a - as a reserve - are you objecting to the production of the document?

355 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 2O 30 40 BY MR. ROGER BAKER, Q.C.: Yes, I am. BY MR. COLIN IRVING: So then it will be RJR-15 (Reserve). (TO WITNESS): Q. And I ask you, Mr. Collishaw, please, to produce for the record of the Court a complete copy of this document, without deletions. BY MR. ROGER BAKER, Q.C.: He can't make that undertaking on his own; the document will have to be scrutinized to determine what was deleted and the reason for the deletions, Mr. Irving. BY MR. COLIN IRVING: Well, Mr. Baker, it will be trial Judge in this case... BY MR. ROGER BAKER, Q.C.: I beg your pardon? BY MR. COLIN IRVING: I think it will be the trial Judge in this case who will make the determination. BY MR. ROGER BAKER, Q.C.: He may be incapable of making an undertaking that he can't carry through on, Mr. Irving, so it will be a qualified undertaking. BY MR. COLIN IRVING: Well, could you tell me what the qualified undertaking is? BY MR. ROGER BAKER, Q.C.: He may not have the right as a matter of Law

356 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 20 3O 40 to produce something that has already been "x-ed" out, for reasons unknown to me for the moment, under the Access to Information Act. I can't give you an unreserved and a complete undertaking to produce a document, or all parts of the document. BY MR. COLIN IRVING: Q. Mr. Collishaw, I am showing you one of the documents produced to us by the Attorney General, the numbering is a little hard to read, I think it starts at No. 174... BY MR. ROGER BAKER, Q.C.: Just a moment, maybe we can tell from the second... BY MR. COLIN IRVING: Yes, it is, it's 174. BY MR. ROGER BAKER, Q.C.: Cent soixante quatorze? Oui! (DISCUSSION OFF THE RECORD) BY MR. COLIN IRVING: Q. I want to show you documents numbered 174 and 175, to begin with, which is a letter addressed to the American Surgeon General by one M.M. Law, it appears to be dated May 8, 1987. Have you read the letter through? A. I have scanned it quickly, yes. Q. Mr. Collishaw, just the letter for the moment. A. Uh-huh. Q. Would you just say for the record again, please, who "M.M. Law" is? A. Yes, Maureen Law is the Deputy Minister of National Health and Welfare. Q. And I want to show you a companion letter, which is number 178 and 179, addressed this time by Mr. Jake Epp to Intezar (sic) Bowan, the Secretary of the Department of Health and Human Services in Washington, D.C.; do you have that? A. Uh-huh.

357 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 2O 3O 40 BY MR. COLIN IRVING: First of all, I'd like to have those letters marked, please, respectively as RJR-16, that will be the "Law" letter, and RJR-17 will be the... BY MR. ROGER BAKER, Q.C.: Just a minute, is it a two-paged thing, or do you want the memorandum... BY MR. COLIN IRVING: We will put it in as we got it, which is like this (showing document). Actually, it would be just as simple to mark the whole bundle, starting on page 174 and ending on 184, as RJR-16 as a single exhibit. (TO WITNESS): Q. Now, you have read this through, Mr. Collishaw, and as you will see, there is a reference in the first page of the letter, both from the Minister and from Maureen Law, to the fact that: "... approximately 60% of all the magazines in Canada originate in the United States and, of course, most contain advertisements for American cigarettes. At the moment only 1% of cigarettes consumed in Canada are American brands but this situation may change, should this proposed legislation become Law." My question to you is were you at all involved in advising, either Maureen Law or the Minister, on the factual background for the statement which I just read out? A. Indirectly, in that documents were prepared in my office and then forwarded through the chain of command to... Q. Documents were prepared in your office which showed the extent of American advertising in Canada, is that - do I take that to be your answer? A. No, we assembled that information from elsewhere,

358 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 2O 3O 4O we didn't collect it originally ourselves, and the information was forwarded to Maureen Law and the Minister; I didn't speak to Maureen Law or the Minister directly on this issue. Q. Is it fair to say then, Mr. Collishaw that part of the letter which I just read to you concerning the 60% of American magazines and so on, in Canada, represents the information provided by your group, in general, to the Minister? A. Yes. Q. Thank you. Before I leave that document, Mr. Collishaw... BY MR. CLAUDE JOYAL: Can you wait a second. BY MR. COLIN IRVING: Q. I just wanted to show you specifically, Mr. Collishaw, a part of the memorandum to the Minister, which forms part of that exhibit and which begins at page 176, and there's a heading "Relevant Factors", and the words: "Should the proposed Tobacco Products Control Act become Law, there still be no restriction on the tobacco advertisements seen in the 146 million American magazines read in Canada every year. " Is that part of the specific information that was prepared by you, or in your department, and forwarded on to the Minister? A. It was information we had received from elsewhere and forwarded it on. Q. Which you passed on? A. Yes. Q. I am showing you a letter dated May ii, 1983, the original of which was apparently signed by A.J. Liston, and which is addressed to a Mr. Paski, and I draw to your attention, in the third paragraph, the statement: "At present, studies of jurisdictions where cigarette advertising and promotion have been banned, countries such as Norway,

359 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 2O 3O 4O Italy and Poland show that smoking has continued at much the same rates as before the ban." My question is, Mr. Collishaw, whether you were involved in providing the information reflected in that statement to Dr. Liston, for the purpose of writing this letter? A. I don't remember. Q. You have no recollection of that? A. No. Q. I would like to have that letter marked, please, as RJR-17. I would now show you a document produced to us, number 5501 and 5502. It is headed "Report to the Ad Hoc Committee on National Health Strategies; who was that committee, Mr. Collishaw? A. This is another committee that's receding in my memory; I don't recall the exact structure of the committee, or who was on it. I certainly wasn't on it. Q. You were not on it, was it a committee within Health and Welfare? A. I don't even remember that. Q. Now, this memorandum is dated May, 1983. Q. Uh-huh, yes. Q. And I see in the third paragraph reference to the Health Protection Branch. Uh-huh. Do you see that? Uh-huh. Were you involved at that time in that branch? Yes. Yes. I read - I quote: "The Health Protection branch is current preparing recommendations to Cabinet on the subject of alcohol and tobacco advertising." Were you involved in those preparations? A. Yes. Q. I read on, quote: "The possibility of partial and total prohibitions of advertising were considered in the branch and rejected." Is that an accurate reflection of the conclusion reached

360 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 2O 30 40 by your branch and yourself, indeed, at that time? BY MR. ROGER BAKER, Q.Co: Can you repeat the question, please? BY THE REPORTER (Repeating question): "Q. Is that an accurate reflection of the conclusion reached by your branch and yourself, indeed, at that time?" BY MR. ROGER BAKER, Q.C.: Objection; the opinions of the witness at any time are inadmissible. (TO WITNESS): Don't answer the question. BY MR. COLIN IRVING: Q. Well, is that statement factual? BY MR. ROGER BAKER, Q.Co: Same objection; whether an expression of opinion in a document in which the author... BY MR. COLIN IRVING: Mr. Baker! BY MR. ROGER BAKER, Q.C.: ... which the witness has not authored, is deemed by you to be factual and, therefore, accurate, which contains an opinion? BY MR. COLIN IRVING: I am asking... BY MR. ROGER BAKER, Q.C.: No less objectionable than if you had just simply flat out asked for his opinion now.

361 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 2O 3O 4O BY MR. COLIN IRVING: I am asking a member of the branch, who was involved, as he has just said, in the preparation of recommendations such as referred to here, whether a statement: "The possibility of partial and total prohibitions of advertising were considered in the branch and rejected." is accurate. BY THE WITNESS: A. Well, I'm having a little difficulty with the question. This is a statement of Dr. Liston's. BY MR. COLIN IRVING: Q. That's right. Q. And, if he - the difficulty I am having is "considered and rejected" by whom? Q. Well, I think it says "the Health Protection Branch is currently... A. Yes. Q. "... and the possibility of prohibitions were considered in the branch and rejected" So, I presume the reference is to the Health Protection Branch of which you were a... BY MR. ROGER BAKER, Q.C. : Irrespective of what the reference is to, Mr. Irving, you are asking this witness to interpret the letter of another... BY MR. COLIN IRVING: I ' m not. BY MR. ROGER BAKER, Q.C.: And, if not, if that's not what you were trying to do, you are certainly asking for him to attest to the veracity of a statement in that letter, which in itself is the expression of his opinion and whether he believes that was accurate or not, is irrelevant, Mr. Irving.

362 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 20 30 40 BY MR. COLIN IRVING: I'm going to ask one more time. (TO WITNESS): Q. Mr. Collishaw, to your recollection, as a member of the Health Protection Branch, was the possibility of a partial and total prohibition of advertising considered in the branch and rejected? A. Again, I have to tell you my difficulty with the question. The letter is written by Dr. Liston, this particular sentence is written in passive voice, indicating there was consideration and there was rejection, but it is not obvious from the sentence who specifically considered it and who specifically rejected it. Dr. Liston wrote the letter and Dr. Liston - at the time he was Executive Director General, the second ranking person in the branch. Q. That paragraph goes on to say, and I quote: "Partial bans exist in several countries and have no apparent effect on consumption." Do you recall providing information to that effect to other members of the Health Protection Branch at the time? BY MR. ROGER BAKER, Q.C.: I object. The passage of an opinion by Mr. Collishaw to the writer of the letter, who is not present to explain the letter, is no less objectionable than asking Mr. Collishaw what his opinion is today on the subject. BY MR. COLIN IRVING: I didn't ask him he opinion. I asked whether Mr. Collishaw had provided any information he had gathered concerning the effect of bans in other countries. BY MR. ROGER BAKER, Q.C.: This is not what you asked him before but that question is acceptable. BY THE WITNESS: _ A. Sorry.

363 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 20 3O 40 BY MR. COLIN IRVING: Q. Did you provide information relating to the effect of bans in other countries, to anyone in the Health Protection Branch at that time? A. In this particular case I cannot recall; it was six years ago. Q. Paragraph goes on: "Total bans on tobacco advertising and promotion have recently been implemented in Norway and Finland but there has been no decline in tobacco consumption in these two countries." Now we spoke yesterday of the information you had collected concerning both Norway and Finland. Do you recall that, Mr. Collishaw? A. Yes. Q. Yes. Do you recall giving information on the effect of bans on tobacco advertising in Norway and Finland to members of the Health Protection Branch at the time? A. I recall giving information to them on the subject of - of advertising bans on consumption in those two countries. But in this specific incident - this specific instance, I don't have a precise recollection. Q. But do you recall that your own study of the matter showed - or did your own study of the statistics of tobacco consumption in Norway and Finland show that there had been no decline of consumption in those two countries? BY MR. ROGER BAKER, Q.C.: Don't answer the question. You are asking him for conclusions that he reached as a result of collecting data from another country and his conclusions and opinions are irrelevant. BY MR. COLIN IRVING: I am asking simply whether the data showed that. BY MR. ROGER BAKER, Q.C.: Don't answer the question.

364 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 2O 30 4O BY MR. COLIN IRVING: Q. The paragraph goes on: "In light of the experience of others to date, the prohibition of advertising and sponsorship would not be supported by our branch at this time." Do you recall that as a conclusion reached by your group at that time? BY MR. ROGER BAKER, Q.C.: You are asking this witness, by citing a letter written by the second most senior person in the Department of Health at the time, to ask him if that is consistent with the conclusions reached by his group at the time, Mr. Irving, which is tantamount to asking Mr. Collishaw what his opinion was at the time. I make the same objection, based on the same proposition of Law, that his opinions then and now are not admissible. BY MR. COLIN IRVING: I would ask that we have this document marked, please, as RJR-18. (TO WITNESS): Q. I am showing you a letter dated February 22, 1984, from the Minister of Health and Welfare at the time, Monique Begin, to Mr. Jeffrey Knight; it is government production document 3594 and 5. First of all, Mr. Collishaw, you were involved in the department at that time, I take it? A. Yes. Q. Yes. I draw your attention to the bottom paragraph on the first page, second sentence: "Bans on advertising have been studied from time to time but research on jurisdictions where bans have been in effect, like Norway and Finland, was that smoking rates among the

365 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 2O 3O 40 population are not much affected." End of quote for the moment. And is it true to say that you have studied bans on advertising from time to time and was it true at that time? A. Yes. Q. Do you recall, Mr. Collishaw, providing information on the results of your studies of advertising bans to the Minister at that time? A. As before, I recall providing such information to my superiors, not to the Minister directly. I again have no - a letter from the Minister, I don't have a specific recollection. Q. No, no, I don't expect you to remember that letter but you do recall that that's the kind of information that you did collect and even in 1984, that's the sort of thing you would be passing on through your department, to the Minister? A. It would be passed on; whether it got to the Minister or not, I wouldn't always know. Q. It would appear in this case that it did. BY MR. ROGER BAKER, Q.C.: You are asking the witness to make an assumption, or speculate, and that he cannot do. BY MR. COLIN IRVING: Well, there's not much he can do, Mr. Baker, it seems. (TO WITNESS): Q. Moving on: "Consumption of tobacco can be discourage by price increases however, and I have suggested that taxes on tobacco products be increased." Is it also true to say, Mr. Collishaw that, as you said yesterday, I think, that you have examined from time to time, as part of your duties, the effect of price increases on consumption of tobacco products. A. Changes in consumption, yes. Q. Yes. If I recall correctly, you expressed the opinion at one time in a written document, that 92%

366 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 2O 30 4O of the change in consumption in Canada was due to price increases. A. To price increases, or changes in price, yes. Q. Yes, but those were price increases, weren't they? They weren't price decreases. A. Actually they were price decreases. That particular set of data was related to decrease in price and increase in consumption. Q. We are going to come back to that in a minute. But, as a result of your studies, you did study that issue and I see this statement that consumption can be discourage by price increases, is that the kind of information you were providing to the Minister at the time? A. Yes, again through the same indirect route. Q. I would like to have that letter marked, please, as RJR-19. I will show you, Mr. Collishaw, document produced by the Attorney General, begins at page 5519 to page 5522. Tell me if those are notes of yours? A. Yes. Yes, it's my handwriting. Q. It's your handwriting. Are all the pages your handwriting? A. Yes. Q. Is that date at the top of the page 28, February, 1985? A. Yes. BY MR. ROGER BAKER, Q.C.: On what page? BY MR. COLIN IRVING: Fifth page. BY MR. ROGER BAKER, Q.C.: Page 5519. BY MR. COLIN IRVING: 5519. (TO WITNESS): Q. At page 5521, the top line says: "Outcome of..."

367 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving !0 2O 3O 40 is that "leading"? A. "Leading", yes. Q. "... with..."? A. "Law". Q. That is Maureen Law? A. Probably, yes. Q. Just the second last notation on that page, where it reads, as best I can: "Maureen is..." is that "confused"? A. I have no trouble at all reading this handwriting! Q. I am not surprised, Mr. Collishaw; I can read my own, with the greatest of ease. A. "Maureen is confused by role of PPI." Q. What is "PPI"? A. "Policy.Planning and Information", being one of the branches of the department that existed at that time. Q. And if you would turn over the page, I read just at the second line at the top - I am getting better at your handwriting: :Ban advertising - Not recommended by BTCB" What's BTCB? A. Would've been Bureau of Tobacco Control and Biometrics. And where does that bureau fit into Health and Welfare? A. Q. A. I was working. Q. It no longer exists. Well, where did it fit in Health and Welfare? However, at the time, it was the place where Okay. And how many people did you say there were in that group at the time? A. I don't think I did say. Q. How many were they there? A. Oh, it was around a dozen. Q. Okay. Of the familiar names that now we have been hearing for the last few days, who else was in the Bureau of Tobacco Control Branch at the time? A. Bureau of Tobacco Control and Biometrics. Q. And Biometrics, I'm sorry. A. Myself, Byron Rogers, the Director of the Bureau was David Bray.

368 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 2O 3O 40 Q. Bray, yes. Who else was there? A. From the names we've been talking about? Q. Or other that you can remember. A. Walter Tostowaryk; Walt Savelund (sic) would have been another; Don Lewis, although he retired somewhere around that time; Linda Mulligan. There were others, Robert Thompkins was another. Q. Okay. Now I read under that line: "Currently under review by Legal..." Is that a correct reading of the line? A. Yes. Q. "Answer expected April 29" A. Yes. Q. Now this, do we agree, was written on the 28th of February, 1985? A. Just let me check that. Q. There's a date on the first page, I don't see any others. A. Yes, but.., yes, I think so. Q. So in February 1985 you write: "The ad. ban is currently under review by Legal. Answer expected April 29." Who told you that the answer was to be expected by April 29? BY MR. ROGER BAKER, Q.C.: I object to that, Mr. Irving, that is completed irrelevant. What difference does it make who told him when he might be getting legal opinion and from whom. What possible relevance can it have? BY MR. COLIN IRVING: Actually I thought it might even be evident to you by now, but it's not I see. BY MR. ROGER BAKER, Q.C.: No, I think it's simply your curiosity that's compelling you to ask the question, Mr. Irving.

369 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 20 3O 4O BY MR. COLIN IRVING: Q. The legal opinion referred to, Mr. Collishaw, eventually came in August, did it not, a bit late, that's the Martin Low legal opinion, is it not? BY MR. ROGER BAKER, Q.C.: "Late" is your characterization, Mr. Irving; simply not important. If you put a proper question to the witness, he'll answer the question, Mr. Irving. You are simply playing with words. BY MR. COLIN IRVING: Q. Will you answer the question, Mr. Collishaw? BY MR. ROGER BAKER, Q.C.: What is the question you are putting. BY MR. COLIN IRVING: didn't. I think the witness understood it, even if you BY MR. ROGER BAKER, Q.C.: Put it again. BY MR. COLIN IRVING (To Reporter): Read the question back, please Mrs. Khanna. BY THE COURT REPORTER (Repeating Question): "Q. The legal opinion referred to, Mr. Collishaw, eventually came in August, did it not, a bit late, that's the Martin Law legal opinion, is it not?" BY THE WITNESS: Q. I am not sure whether that reference here is to the same legal opinion, or not.

370 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 2O 30 4O BY MR. COLIN IRVING: Q. Do you recall discussing the legal issue with anyone other than Mr. Low, Mr. Collishaw? BY MR. ROGER BAKER, Q.C.: I object. The legal issues in this case as expressed by the Department of Justice at that time are irrelevant and inadmissible here and he is not going to answer questions on legal opinion sought or given. BY MR. COLIN IRVING: The legal opinion was objected to by you before the Court, Mr. Baker; your objection was dismissed. BY MR. ROGER BAKER, Q.C.: I would like you to disclose evidence to that; I think you are misinformed, Mr. Irving. BY MR. COLIN IRVING: I think you've failed to read the judgment. BY MR. ROGER BAKER, Q.C.: Yes? Let's have a look at it. BY MR. COLIN IRVING: "I believe that I can quote it to you: "L'objection lequel est rejet4". BY MR. ROGER BAKER, Q.C.: Which objection was that, Mr. Irving? BY MR. COLIN IRVING: It was your objection to the production of the Low letter in Longueuil, as you might recall. BY MR. ROGER BAKER, Q.C.: You tried to produce that letter in Longueuil?

371 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 20 30 40 BY MR. COLIN IRVING: And we did. BY MR. ROGER BAKER, Q.C.: And what was the basis of the objection at that time? BY MR. COLIN IRVING: Well, your objection was unfounded and it was dismissed. (TO WITNESS): Q. In any event, do I take it from these handwritten notes of yours, Mr. Collishaw, that it was you - included you anyway - who were.having discussions with "Legal" - whoever "Legal" may be? BY MR. ROGER BAKER, Q.C.: No, that question is not acceptable, Mr. Irving, I object to it. Whether he was having discussions in the Legal Department in respect to a statute is irrelevant. BY MR. COLIN IRVING: Q. Was it you, Mr. Collishaw, you told Mr. Low that the Act would be purely symbolic? BY MR. ROGER BAKER, Q.C.: Calls for repetition of an opinion that he may or may not have given several years ago and I object to it on that basis, Mr. Irving. BY MR. COLIN IRVING: There's a judgment of the 15th of February, 1989, I'd like the record to show, in the matter of RJR-MacDonald and Le Procureur G4n4ral du Canada, judgment of the honorable Jean-Jude Chabot, and I want the record to show that at page 8 of that judgment, the following appears, and I quote - it's in French, so I will read it, because the witness speaks French: (Reading in French). That is the Martin Low letter, it is Exhibit I-1.

372 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 2O 3O 4O BY MR. ROGER BAKER, Q.C.: The point you appear to be making, Mr. Irving, is that Mr. Justice Chabot has ruled on the relevance of an opinion from the Department of Justice. You may recall that in that hearing before Mr. Justice Chabot, in February of 1989, you were showing a letter to demonstrate to him that the Department should have known that there might have been a problem and that the Attorney General should have been ready to defend its statute, or the government statute the day you dropped the Writ, or the Declaratory Motion on the ist. of September, 1989. So in no way could you fairly, or properly characterize what you have just cited in that judgment as an admissibility of the trial Judge, or in respect of the relevance of the letter as to the contents of, or the meaning of the legal opinion express, and you know it. So your citing that in connection with the objection just made is just a tissue of... well, We'll just let it drop at that. BY MR. COLIN IRVING: No, no, go on, I'd like to hear it. BY MR. ROGER BAKER, Q.C.: That's all right. BY MR. COLIN IRVING: No, no, complete your sentence, Mr. Baker. BY MR. ROGER BAKER, Q.C.: I don't want to get carried away by my own flights of fancy. Why don't you just continue asking your questions. BY MR. COLIN IRVING: No, no, go on, I'd rather you did. a wonderful record. Makes such BY MR. ROGER BAKER, Q.C.: - I've been inviting me to go before the Judge

373 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 2O 30 4O for two days now, Mr. Irving; up on my invitation? are you going to take me BY MR. COLIN IRVING: Q. I would ask you, please, Mr. Collishaw, to produce these notes, 5519 to 5522, as RJR-20. I would like to show you, Mr. Collishaw, again a government document, appears to start at page 6619, it is the Economic Report of the President transmitted to Congress in January 1987, and which was produced to us for the purposes of this discovery. Let me ask you first whether that is a document which you received in your department in the ordinary course? A. Yes. Q. Is that a document that you provided to somebody for the purpose of productiion in this case? A. To somebody, who? Q. Well, to anybody within the department, or to counsel? Were you asked - in fact, I may put the question more generally... (interruption). Well, there was a long list of documents provided for discovery purposes, Mr. Collishaw. A. Yes. Q. I am just wondering, had you anything to do with selecting the documents which were listed as being relevant to the case? BY MR. ROGER BAKER, Q.C.: Mr. Irving, given the history of how the documents came into your possession - you as counsel to RJR - I'm not entirely sure it's fair, or appropriate for you to put the question to the witness in that fashion. You don't know what I am referring to? BY MR. COLIN IRVING: I have a great deal of trouble seeing what's the matter with the question. BY MR. ROGER BAKER, Q.C.: All right, then I will go on the record and tell you what I think is the matter with the question. As you well know, letters were exchanged between

274 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving 10 2o 3o 4O counsel in Toronto, in the Federal Court case between Rothman, Benson & Hedges and the Attorney General of Canada. Under the Federal Court rules, the Attorney General in that case in Toronto gave a list, or gave access to documents... BY MR. COLIN IRVING: No, gave a list. BY MR. ROGER BAKER, Q.C.: Gave a list first and access to documents to the counsel for Rothman, Benson and Hedges. How that list got into possession of you, Mr. Irving, as counsel for RJR, or Mr. Potter, I'm not quite sure, but it is and has been our position, and as you know I have put it to you before, that there is a breach of confidence in connection with the transmittal of that list to you. And so, nobody in the case that is pending before this Court, that is to say RJR-MacDonald versus The Attorney General, or Imperial Tobacco, has indicated to you in anyway that these documents were relevant, or pertinent to this case. Having made that statement, now you can put questions to the witness. BY MR. COLIN IRVING: Q. Did you have anything to do with the selection of documents which were deemed, apparently in Toronto, to be pertinent to this case, Mr. Collishaw, or to the Rothman case? A. Yes, I was involved to some extent. Q. Now, have you had the opportunity to read through the Economic Report of the President that I just showed you? A. Q. A. Q. A. or... Q. produced? A. No, I haven't. have you ever read it? This is an extract of that report. I hope... Now, are you asking me about this extract, This extract. This the extract that was

375 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 20 3O 40 Q. Did you have something to do with producing this extract? Is this one of the documents you put forward as possible... A. Well, not specifically. BY MR. ROGER BAKER, Q.C.: Are you asking this witness to determine the relevance of this document to your case, Mr. Irving? BY MR. COLIN IRVING: No, I am asking whether this is a document that this witness put forward to whoever it was, to include in the list of documents. BY MR. ROGER BAKER, Q.C.: It hasn't yet been established that this witness put any documents forward, Mr. Irving. BY MR. COLIN IRVING: He certainly did. BY MR. ROGER BAKER, Q.C.: No, he hasn't said a thing in that regard. Are you trying to get to the methodology of who told whom to give what to whom and in which case, whether in Montreal or Toronto? BY MR. COLIN IRVING: Would you first of all lower your tone of voice? BY MR. ROGER BAKER, Q.C.: Well, because you are misleading the witness. BY MR. COLIN IRVING: And secondly, speak a little less and let the witness listen to the question, we might get on a little better. (TO WITNESS):

376 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Irving i0 2O 3O Q. There's no trick in the question, Mr. Collishaw. I wondering, here is an extract from a report - the Economic Report of the President; my first question is did it come from your office, is this something that you would get in the ordinary course? A. Yes. Q. Yes. And is this a document - this extract, is this a document you've seen before? A. Yes. Q. I want to draw your attention to page 186. There is a reference there to advertising bans. Had you read that through? May I take the opportunity to read on a little? A. A. Q. as RJR-21. Oh yes, absolutely. Yes, I have read it. First of all, I would like to have it marked At the time you - had you read that before, Mr. Collishaw, the passage I was directing your attention to on page 186? A. Actually I don't recall having read it before. BY MR. COLIN IRVING: You can have your little break now; I think I'm finished, but if I have another question, I might... AND FURTHER DEPONENT SAITH NAUGHT. K. KHANNA Official Court Reporter 40

377 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter CAUSE: 500-05-009760-883 C.s.M. i0 2O 3O April 13th, 1989 (P.M.) APPEARANCES: MR. SIMON POTTER, MR. PIERRE BIENVENU, MR. GREGORY BORDAN, (OGILVY RENAULT) Attorneys for Applicant MR. ROGER E. BAKER, Q.C. (BAKER, NUDELMAN) Attorney for Respondent MR. CLAUDE JOYAL, MISS GERALDINE SPARROW, MISS PASCALE LAGAC~ (DEPARTMENT OF JUSTICE) Representing the Attorney General of Canada ALSO PRESENT: MR. GEORGES THIBAUDEAU, (MACKENZIE, GERVAIS) Counsel to RJR-MACDONALD INC. 4O EXAMINATION FOR DISCOVERY AFTER CONTESTATION OF NEIL E. COLLISHAW HAS APPEARED: MISTER NEIL E. COLLISHAW Witness in this case, WHO, having first been DULY SWORN, deposed as follows: BY THE COURT REPORTER: Q. Your name? A. Neil Collishaw. Q. Your age?

378 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 3O 4O A. Forty-two (42). Q. Your home address? 134, Caroline Avenue, Ottawa. Q. Your occupation? A. Public Servant. BY MR. SIMON POTTER (ATTORNEY FOR IMPERIAL TOBACCO LIMITED): Mr. Baker, before I begin with your client, Mr. Collishaw, I simply want a confirmation for the record that there will be no objection to this transcript being filed in the RJR case, nor to the RJR transcript being filed in our case? The reason I being it up is so that I don't have to go through all the questions and objections which were dealt with over the past day and a half in the RJR examination on discovery. BY MR. ROGER BAKER, Q.C.: I have no objection whatsoever. BY MR. SIMON POTTER: And, in order to speed things up in this case, I take it that if I ask the same kind of questions, in that case I'll get the same kind of objections. BY MR. ROGER BAKER, Q.C. : Yes. BY MR. SIMON POTTER: And though I don't agree with your objections, Mr. Baker, trying to live with them in this spirit of speeding things up, I take it that you object to a question calling for any opinion from any employee of the Federal Government? BY MR. ROGER BAKER, Q.C.: Yes, within the meaning of the judgment Smith, Kline, French referred to, as you know, as you were here yesterday, judgment of Mr. Justice Addy is reported in the 1982 National Reporter.

379 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 30 4O BY MR. SIMON POTTER: Well, I take it you don't agree that that case only applies to opinions given by civil servants regarding the interpretation to be given to a statute? BY MR. ROGER BAKER, Q.C.: Are you... BY MR. SIMON POTTER: Your objection goes further, does it not? BY MR. ROGER BAKER, Q.C.: Well, what is the purpose of this discussion now? BY MR. SIMON POTTER: I want to know whether I can ask your client... BY MR. ROGER BAKER, Q.C.: Mr. Collishaw... BY MR. SIMON POTTER: ... questions calling for an opinion. BY MR. ROGER BAKER, Q.C.: No, you cannot. BY MR. SIMON POTTER: No. Thank you. CROSS-EXAMINATION BY MR. SIMON POTTER (ATTORNEY FOR IMPERIAL TOBACCO LIMITED): Q. Well, let's try and proceed under that umbrella, Mr. Collishaw, and not that I accept it but we'll try and live with it. Mr. Collishaw, I don't want to review everything that was done over the past day-and-a-half and I am going to try and fit my questions around the answers you've already given so as not to call upon you to repeat things you've already said in the discovery conducted by Messrs. irving and Cherniak. And I'd like

38O NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 20 30 40 to start off by going back in time a little bit, and leading up to the time when Bill C-51, the Tobacco Products Control Act was introduced into Parliament. And I'd like to start off by showing you a document which, I'll admit straight away, I think comes from a time when you were not even in any of the positions, or reincarnactions of the position which you occupy today. This first document is dated July 1979 and bears the Attorney General's page No. 1209 and following, 1209 through 1214A. First of all, were you there in July of 19797 A. I worked for the Department of National Health and Welfare at that time. Q. Now, this document, your counsel is reading it now but when you see it, it will take you a split second to see that it is several pages of paragraphs which, I think, can be fairly characterized, please correct me if I am wrong, Mr. Collishaw, as stock paragraphs; as paragraphs which are in a bank somewhere and can go into letters, they are approved, stock paragraphs; is that right? A. They are stock paragraphs. I have seen similar collections of stock paragraphs. Q. Right, and I don't think there is anything unusual about that. is there Mr. Collishaw, in a department such as yours, with all the correspondence that goes on, letters are necessarily made up by putting stock paragraphs together, are they not? A. That's correct. Q. And those stock paragraphs are reviewed from time to time and approved by various people in your department, is that not right? A. Yes. Q. And how often are they approve; is there a set rule about that? A. No, no set rule. Q. Well, this one is dated July of 1979, and I draw your attention to the page numbered 1211, and the two paragraphs which are jointly numbered 8 at the top of the page, and I read there: "While I agree that advertising seems to support many highly attractive examples of a variety of lifestyles, I question the validity of the idea that prohibition of tobacco advertising

381 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 20 3O 40 would alter the total volume of sales." The paragraphs goes on to describe - to explain why it is the writer of this stock paragraph has this doubt, and in the second paragraph - the stock paragraph goes on to talk about the tobacco manufacturers' voluntary discontinuation of advertisement via television and radio, without a noticeable effect on sales. Now, do you know whether approval was given to use this stock paragraph 8? A. No, I have no idea. As you mentioned yourself, that the date that appears on the front page of this document is 1979; that was before I was involved in the Bureau of Tobacco Control and Biometrics. Q. The reason for which I ask is that the covering memo, which is an action request, from Julie to Yvette... BY MR. ROGER BAKER, Q.C.: made! Of such things are great constitutional cases BY MR. SIMON POTTER: Q. And I'm not asking about Yvette's action, Mr. Collishaw, but I do see that Julie is asking her to advise whether these paragraphs can, and I insist on the word "still" he used for Crombie's signature. Do you have any idea whether any of these paragraphs were approved following this action request, or not? A. No idea. Q. Could I ask you to find that out? A. You could ask me... Q. Well, the reason for which I ask is that, in the twenty thousand pages of documents which we were trying to get through, we find this action request, these stock paragraphs but we don't find out whether they were approved, or not, and I would like you to try and find out whether or not they were approved - that particular paragraph 8. A. Of course, it is something we can look at but, as you can appreciate, the further back in time you go, the more uncertain records may get. But... Q. Please understand me, Mr. Collishaw, when I ask you to try and do something, I'm not asking you to promise the impossible; I'm asking you to try.

382 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 30 4O BY MR. ROGER BAKER, Q.C.: Would it be fair then for the witness to make the undertaking that he will request that a reasonable effort be made to determine whether that paragraph 8 that you've made reference to, received approval. BY MR. SIMON POTTER: Yes, that will be fair; quite acceptable. (TO WITNESS): Q. And, having obtained that undertaking, I jump to make another one - to ask for another one; if that paragraph number 8 was approved, could you please also find out when it stopped being approved? There must be a - if it was approved and was in the bank of approved paragraphs for signature by a Minister, you must be able to find out when it stopped being approved. A. All right, we can try to do that too. Q. Thank you. And so that we are able to identify that undertaking, could we please produce this as an exhibit. We had "RJR" for the other discovery, what shall we call this one? BY MR. ROGER BAKER, Q.C.: Try "I " BY MR. SIMON POTTER: Yes, I-i is fine. (Following conference): BY MR. SIMON POTTER: Oh "I" may be difficult. BY THE WITNESS: How about "ITL"? BY MR. SIMON POTTER: ITL-I. Thank you, Mr. Collishaw.

383 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 20 30 40 BY THE WITNESS: Glad to be of assistance. BY MR. SIMON POTTER: Yes, you are learning how this workds. (TO WITNESS): Q. The next document, Mr. Collishaw, is about a year later, in 1980 - July ii of 1980; it's a document which bears the Attorney General numbering 5780 through 5783. A. Uh-huh. Q. And it's from a Mr. Lewis, whom you mentioned in the RJR discovery, it's Mr. Don Lewis, is that not - and he was one of the people who was at the Bureau of Tobacco Control and Biometrics with you, is that not right? A. That's right. Q. Addressed to a Mr. Bray, who was at one time Director of Tobacco Control and Biometrics. A. That's right. Q. And in fact he was Director at that time, in 1980, was he not? A. Yes. Q. And were you in that same outfit? A. No. Not at that time. Q. Not at that time. Have you ever seen this document before? A. Yes, yes I have seen this one before. Q. Do you remember in what circumstances you saw it? A. At one point when I was reviewing some of the - some of the files that preceded my arrival in the Bureau of Tobacco Control and Biometrics. Q. And would it be fair to say, Mr. Collishaw, that you examined this document as part of your duties in regards to policy of Health and Welfare? A. In regards to my activities as a policy analyst in the bureau of Tobacco Control and Biometrics would be the correct characterization, I believe. Q. And part of those activities and duties included, did they not, Policy Analysis and Development? A. Yes. Q. I draw your attention to page 3 of that document numbered 5782, and I read an answer proposed for a possible question which was, if not expected, at least anticipated on a W5 Program, the question 9:

384 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 3O 40 "Would the government consider legislation to ban cigarette advertising?" Answer by Health Protection: "It is not practical to ban the advertising of a legal product, that is to say a product which is not legally prohibited. To do so would appear hypocritical to Canadians. It would be a form of sweeping a problem "under the rug", which would not reduce the exposure of Canadians to tobacco smoke. The government is therefore considering the possibility of regulating cigarette advertising. This might, for example, reduce or eliminate the association of cigarette smoking with sports, or cultural events, some lifestyles or achievements and so on. Consideration of this proposal" - that is to say the proposal to regulate - "is only at the philosophical .stage." Mr. Collishaw, with your experience and background in Policy Analysis and Development, can you tell us whether that paragraph fairly explains the policy of the Health Protection Branch, at that time? A. No, I can't; I wasn't a member of the Health Protection Branch at that time. Q. And can you tell us whether it fairly explains the policy of that branch when you did join it? A. I'm not sure it's even correct to say that branches have policies in the sense to which you're referring; it's - the governments set policy, we provide policy advice and research concerning policy options that the government might be interested in. Q. And, from the beginning of the time which you became engaged in Policy Analysis and Development, does this paragraph fairly explain the policy in effect at that time? A. Again I have difficulty commenting on it with respect to what was going on at that time, because doing policy analysis and research on tobacco issues was not part of my duties at that time.

385 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 20 3O 4O Q. I am sorry, Mr. Collishaw, if I did not explain myself properly; I meant when you began doing Policy Analysis and Development, were you then faced with a policy which is fairly explained here? A. No. The... no, this - when I began in 1981, I'm not - I don't think this statement reflects the policy of the government as it was expressed to me at that time. Q. Well, Mr. Collishaw, I'm - that kind of question is going to come back as we look at more documents, as we go over time. Q. Uh-huh. Q. And please feel free to let me know if you are uncomfortable with the question, or if you want it posed in a different way; all I'm trying to get at is a straightforward, fair explanation of what the policy was. And when we come to the time in the early Eighties... A. Uh-huh. Q .... when you'd been there for a while doing the policy analysis, this question is going to come back. A. Okay, fine. Q. Now, looking at this same document, that page 5782, I see that - at the very last line: "Consideration of this proposal" - that is to say the proposal to regulate cigarette advertising - "is at the philosophical stage." When you took up your duties of Policy Analysis and Development, was there at that time consideration of a proposal to regulate cigarette advertising? A. Yes. Q. And do I take it from that answer, Mr. Collishaw, that there was consideration of a proposal to do something less than ban it? A. A range of policy option were being considered... Q. And when you... A .... beginning in - when I started my duties on this in 1981. Q. And in 1981 was a - in that range, was a ban considered? A. Yes. Q. Okay, having discussed this document, let's file this as ITL-2. Moving on to the next one, Mr. Collishaw, this is a document which, in many respects is similar, but it is different; it begins at the Attorney General's page 1490 and ends at 1502 and has a covering page dated July 16 of 1980, that is to say five days later than the

386 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 30 40 document we've just looked at, but still apparently has to do with the possibility of a T.V. interview. Have you see this document before? A. Yes, I have. Q. In the same circumstances as the last one? A. Yes. Q. And I draw your attention to 1499, at which we have very much the same question as that discussed in relation to the previous document, but with the answer expanded a bit, we have the same kind of answer: "To do so would appear hypocritical to Canadians. It would be a form of sweeping a problem "under the rug" " It goes on to say: "From a purely practical point of view, we also have the reality of American magazines and newspapers which currently enter Canada." Last sentence: "The government might propose, however, reducing the association of cigarette smoking with sports or cultural events, certain lifestyles or achievements and so on." From your experience in the department, Mr. Collishaw, do you have any idea why the proposed answer shifted from a discussion, from the possibility of regulating advertising to the simple discussion of the possibility of reducing the association of cigarette smoking with sports or cultural events? A. I can make a reasonable surmise about how that happened, based my experience, but I don't have direct knowledge of it again; again that was - these documents pre-date my - when I began working on tobacco. But in terms of a reasonable surmise, the previous document was... BY MR. ROGER BAKER, Q.C.: Just before you continue, Mr. Collishaw; do you, Mr. Potter, think it's appropriate for the witness,

387 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 30 4O having told you that he wasn't there at the time, to guess as to why there may have been a shift between two documents five days apart, nine years ago? BY MR. SIMON POTTER: Frankly, no. Maybe, we should go to the next question; do you think so? BY MR. ROGER BAKER, Q.C.: I agree. BY MR. SIMON POTTER: Okay. (TO WITNESS): Q. On the other hand, there is a sentence in there, Mr. Collishaw, which isn't in the previous document at all and that is the discussion of the practical point of view, and a reference to the reality of American magazines and newspapers which currently enter Canada. I putit to you, Mr. Collishaw, that from the time that you began in your duties in relation to Policy Analysis and Development, this reality, the reality of the presence of American magazines and newspapers in Canada was something well known and well considered by your department. A. Yes, that was a reality and so was the very low volume of sales of American cigarettes in Canada... Q. And in the discussion of that reality within your - oh, I'm sorry, Mr. Collishaw, had you finished? A. Pretty well, yes. Go ahead. Q. Okay. The discussion of that policy within your department, this was dealt with peripherally yesterday, but was there any attempt to find out what kind of a market share American brands of cigarettes had held in Canada, in the past? A. I have looked back a few years on that issue. Q. What does that mean? A. I believe I examined that subject for a number of years in - during the 1980's. Q. Did you even look to a period before the 1980's? A. I can't recall. I may have, and forgotten. Q. In - as part of your duties following the trends of Canadian sales and consumption and marketing

388 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 3O 4O in Canada, you are aware, are you not, that there are particular Canadian brands cigarettes sold today... A. Yes. Q .... which are Canadian only? A. Yes. Q. Do you know when they were introduced? A. Mostly no. Q. Well, this document will become ITL-3. The next document, Mr. Collishaw, begins at page 10468 and ends at i0471; it's a document which you have seen even just today answering questions from Mr. Irving, although he referred to other page numbers of the Attorney General and, I believe, to another date, and I just want to clarify a few thing with you. Mr. Irving showed you a document which began at the Attorney General's page 5501, and unless I'm mistaken, found that it was apparently dated in May of 1982, it's a document which became exhibit RJR-18. The document I'm putting before you, Mr. Collishaw, bears no date although it is attached to an August 16, 1982, Report of the ad hoc Committee on National Health Strategies. Do you see that? A. Yes. Q. And the document itself, coming back to page 10468, which is a memo from Mr. Liston to Mr. Fry, begins: "Following a careful study of this document, I have a number of comments to make which, I hope, will be useful to the ad hoc Committee." Am I correct in saying that Mr. Liston is referring to the August 16, 1982, report? A. I'd say that was a good presumption on your part; it would be a presumption on my part too. Q. As of August, 1982, do you have responsibilities for Policy Analysis and Development? A. Yes. Q. And the last sentence in the third paragraph of Dr. Liston's letter, which reads: "In light of the experience of others" - that is to say other countries - "to-date, the prohibition of advertising and sponsorship would not be supported by our branch at this time."

389 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 30 4O Mr. Collishaw, I'm not asking for your opinion, whether you agree with this or not, I'm not asking for your policy, but I am asking you whether that in fact was the policy of - call it your branch, or the Federal Government at that time? A. Well, again I hesitate to - to mix up government policies and statements made by public servants in our branch. This certainly appears to be a statement of Dr. Liston in addressing his letter to Dr. Fry and, as I mentioned before, at the time he was the second ranking official in the health Protection Branch. Q. So, is your answer that whether or not it's government policy at that time, it is certainly a statement of the position of the Health Protection Branch at that time? A. It's a position of - it's a statement made by Dr. Liston. The Health Protection Branch has many people working in it, over two thousand, I believe. They might not all have - they might not all have made the same statement. You know, how does one deal with positions or statements of organizations; it's... Q. Well, Mr. Collishaw, sometimes - lawyers anyway, representing a client, maybe two, or three, or four in number on the same side and they may have differences of view among them... A. Yes. Q .... but they nevertheless come up with a position and advance that position. I am asking if that's not the same thing with your branch? A. By and large it is. Q. And can you tell us as a question of fact, whether in August of '82 it was not the position of your branch that a prohibition of advertising should not be supported? A. All I know for sure is what I can see in this document and it was a statement made by the Executive Director General, the second ranking official and the one who had, at that time he - well, no that's not true - he was the second ranking official of the branch at that time. BY MR. ROGER BAKER, Q.C.: Well, Mr. Potter, I truly don't want to interrupt you but I think you made a slight error in characterizing that sentence; you said "should" when in fact the line reads "prohibition would not be supported" In your last question you said "should not be supported" and there is a distinction, I think, and let the record show that you erred in quoting the line.

390 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 3O 40 BY MR. SIMON POTTER: Thank you very much, Mr. Baker, you are quite right; there is a grammatical distinction but I doubt that you are suggesting that Mr. Liston would believe that it should be supported but that he would not. BY MR. ROGER BAKER, Q.C.: There's a big difference between "should" and "would" What you can get done may be different from what you'd like to have done; I really don't know, but it is not certainly open to me anymore than it is... BY MR. SIMON POTTER: You are quite right, the document says "would" (TO WITNESS): Q. Who was the first ranking official at that time, Mr. Collishaw? A. It was Dr. Alex Morrison who was the Assistant Deputy Minister at that time. Q. Are you aware of any statements from Mr. Morrison which - at that time, which contradict that sentence I'm just looking at? A. No; on the other hand, unless I saw it somewhere, I wouldn't be aware of any that - that would align with it either, but he may well have made such statements himself. Q. Are you saying he may well have made such which would align with that? A. That, or perhaps contradict; I'm simply not aware of - offhand - of what statements he might have made in that - in that connection. Q. Fine. Turning the page Mr. Collishaw, I'm just looking at this paragraph here, the paragraph on page 2 of the document, at the Attorney General's numbering 10469; paragraph beginning "The attached paper"... A. Right. Yes. Q. And reading in the middle of the paragraph I see Dr. Liston writing: "Where this sort of analysis is to be extended to other, major risk factors, such as physical activity, nutrition, stress and hypertension, the

391 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 3O 40 information thus obtained would be useful in developing priorities, policies and programs that address these risk factors." Mr. Collishaw, I take it from that, and I'd like you to correct me if I'm wrong, that the branch - what Mr. Liston calls the "branch" - the Health Protection Branch... A. Uh-huh. Q .... considered that - many things, whether activities, or nutritions, or situations, constituted risk factors. A. Well, physical activity, or a lack of same, improper nutrition, chronic distress, hypertension, are certainly risk factors for - for disease, yes. Q. And he ties that directly to the question of developing priorities, polices and programs, and I take it that in your Policy Development and Policy Analysis you must take into account lots of different risk factors; is that not correct? A. Yes. Q. I turn the page again, Mr. Collishaw, to arrive at the first page of the report of the ad hoc Committee on National Health Strategies, dated August 16, 1982; this is the ad hoc Committee which was hazy in your memory earlier today, Mr. Collishaw, do you remember? A. Yes. Q. Hazy or not, I see that there is a reference to the majority of the provinces which have now obtained approval from their Ministers and the proposed releasing date was August 16, 1982. Now, as a matter of fact, Mr. Collishaw, from the time which you took on your duties in relation to policy development and analysis, have you not been in continued and repeated contact with the provinces of Canada? A. Perhaps not for that whole period of time but, in the more recent years, I've been in contact with officials of provincial governments, yes. Q. Can you give us an idea when those contacts would've started? A. Well, there were contacts, I guess, on an ongoing and regular basis starting around 1984-85, somewhere in there. Contacts from time to time with provincial officials on particular questions before that period as well, but... Q. Okay, thank you, Mr. Collishaw; let's name this one then ITL-4. And Mr. Collishaw, we are already up to

392 NEIL E. COLLISHAW (for the Applicant) Cross-examinatiion by Me Potter i0 2O 30 40 1984 and what I am showing you now, Mr. Collishaw, is a memorandum from A.D.M., A.B. Morrison, to D.M., Kirkwood, dated January 23, 1984, on the subject of Tobacco Control, which are page 3618 to 3620, and attached to the document is a memo from Monique Begin to the Deputy Minister, dated June 13, 1983. A. Uh-huh. Q. Now that note is attached, Mr. Collishaw, because it is referred to at page 2 of the memorandum. A. Uh-huh. Q. Now, first of all, let's deal - take the time you want to familiarize yourself with the document, Mr. Collishaw. A. Yes. Q. Okay, rather than jump around, let's go through the document in order, and I am interested in the first paragraph here, the very long one, Mr. Collishaw, which speaks of various things, including a Proposed Information Program, a Monitoring and Enforcement Program, a Program for the Control of Tobacco Smoke Indoors and a proposal to use federal taxing power to raise the retail price of all tobacco products by 30%; do you see that? A. Yes. Q. And I draw your attention to the final sentence of this paragraph which reads: "It is estimated this would have the effect of reducing the tobacco consumption by about 10%." A. Yes. Q. Do you know who made that estimate? A. I believe I did, based on reading various studies of - various econometric studies that had been written at that time. Q. Now, jumping away from this document, Mr. Collishaw, and thinking about Bill C-51 and the ad. ban, has anyone, to your knowledge, made any estimate of the percentage reduction in consumption which it will bring? BY MR. ROGER BAKER, Q.C.: The question, Mr. Potter, I think is unfair and improper on two grounds; improper because it is hypothetical and asks him to speculate, but unfair perhaps in that we are in litigation and we do have expert witnesses who will be testifying. He may or may not have been given some of the calculations which you...

393 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 3O 40 BY MR. POTTER: Q. Mr. Collishaw, I certainly don't want disclosure BY MR. ROGER BAKER, Q.C.: ... and so I - would you like to, perhaps, precise your question in time, if the department had... BY MR. SIMON POTTER: Q. Before this litigation began, Mr. Collishaw, are you aware of any similar estimate having been made, within the Government of Canada, regarding the likely effect on consumption of the advertising ban? A. No quantitative estimate has been made, to my knowledge; however, the effects of an advertising ban may well be more general and harder to quantify than the ffects of price. It should also be considered that advertising bans, where they been - or where they have taken place, have pretty well always taken place in conjunction with other measures. So it becomes very difficult to sort out quantitatively the effect of one measure versus another. Q. Well, I'd like to deal with what you've just said, Mr. Collishaw, but before I do, was it very easy to calculate this number of 10% which is in this document? When you look at price changes around the world and the effect that they have on consumption, aren't there difference circumstances to be taken into effect in making that calculation too? A. Yes. Q. isn't that in fact what a econometric study is all about, what you've just referred to? A. Yes. Q. Now I recognize it may be difficult to make some kind of quantitative estimate of the likely effect of an ad. ban on consumption, but my question is not whether it's difficult, or whether it could be done, or whether it's possible, my question is whether it was done. And I take it from your answer, and I'd you to correct me if I'm wrong, that in fact no quantitative estimate was made of the likely effect of the ad. ban on consumption. A. To my knowledge, no one has provided such a satisfactory - provided any satisfactory estimate of the effect of an ad. ban on consumption in quantitative terms. Q. Thank you. To your knowledge, has anyone provided any estimate whatsoever?

394 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 3O 40 A. Oh yes... BY MR. ROGER BAKER, Q.C.: Always prior to coming into effect of the... BY MR. SIMON POTTER: I agree. BY THE WITNESS: A. Oh yes, many researchers have discussed the reasons for banning advertising and pointed to the - to sound reasons for doing so. BY MR. ROGER BAKER, Q.C.: For purposes of clarity, Mr. Potter, were you asking the witness in respect of what studies were commissioned by the Government of Canada? I mean, that's the sense, as I understood, of the question; I apologize if you think I'm interfering with your examination but I think there may be a little confusion. I'm virtually certain the sense of your question was: Did the government commission such studies, Mr. Potter. BY MR. SIMON POTTER: That's not what I asked, Mr. Baker... BY MR. ROGER BAKER, Q.C.: All right, I withdraw the observation then. BY MR. SIMON POTTER: Thank you. (TO WITNESS): Q. Mr. Collishaw, I'll tell you why I'm asking these questions; because, seeing this memorandum, I can see that there was some effort, in fact it turns out you made it personally, before embarking on something as dramatic

395 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 3O 40 as increasing the retail price by 30%, there was some effort to find out what effect it would have. I want to give you the chance to explain just what effort was made by Health and Welfare to learn the likely effect, in quantitative terms, of the ad. ban before proposing it to Parliament. A. Certainly, as part of my duties of Policy Analysis and Research, I kept up with the thinkings and writings of scholars in this area and read - read their material; looked at the conclusions and looked at reports from various expert bodies that examined advertising issues; we looked at trends in other countries and all of this sort of work formed a background to the policy options that were proposed to the government. Q. But specifically, was anything done to estimate, was anything done to try and come up with an order of greatness, as we say here in Quebec, of the likely effect on consumption, of the ad. ban, what was done to come up with a guess; was anything done? A. In reviewing the information which I've referred to before, it became clear that this is not a question that lends itself to the easy quantitative analysis, or coming to any - to a kind of estimate of what you see here. Nevertheless, there were a number of good reasons, good public health reasons and public policy reasons why banning advertising was a useful option to consider. Q. Yes, and we will come to some of those, Mr. Collishaw, but I'm talking now of one aspect of those possible reasons, and that is the effect on consumption, and I'm not going to belabour the point beyond one more question, but I'd like to know whether anything was done to come up with some kind of guess as to the likely amount by which consumption in Canada would be reduced if advertising were banned? A. Certainly we examined all the information that was available in the context of proposing a comprehensive policy to - to deal with the problem of tobacco use; it was not possible to take any of the information available and produce a quantitative estimate of the effect of an advertising ban on consumption in the context of a whole bunch of things going on, all at the same time. And we are not in the business of making wild guesses, so that wasn't done. Q. Coming back then to this document of January 23, 1984, and because there is a letter from a cabinet Minister attached to it, I feel that the transcript should draw attention to page 2 of the memorandum, indicating the instructions which had come from Miss Begin, and I draw your attention to comments which are at the bottom

396 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter l0 20 30 40 of page 2 and which go on to page signed by Mr. Morrison. A. Uh-huh. Q. And he says: this is in the document "I cannot recommend proceeding with a regulation of somewhat doubtful validity which would almost certainly be challenged by the tobacco industry. Similarly, I doubt there is any chance whatsoever of new legislation on tobacco to be presented to the current Parliament. I believe that we should not attempt to do so but that we should put the issue aside until after the next elections." Now, do you remember the discussion of all this, Mr. Collishaw? A. No, I wasn't part of any discussions around this memorandum. Q. Now the regulation of doubtful validity - I believe I'm being fair to the document - is the proposed regulation requiring manufacturers to indicate on labels and advertising the amounts of what are called "known toxic substances", and there is a statement that Justice Section of P.C.O. - what is "P.C.O."? A. Privy Council Office. "... has agreed not to object to a regulation under the Food and Drugs Act but has informed us that the grounds for such action are weak." I know that you've just said that you don't remember the discussion of this, Mr. Collishaw, but do you remember worrying about the validity of a regulation which would require people to put some things on advertisement that they didn't want to put on? BY MR. ROGER BAKER, Q.C.: Mr. Potter, whether or not the witness recalls worrying about regulations, I would put it to you it's not highly relevant.

397 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 3O 4O I'm certainly prepared to let the witness answer the question under reserve of the objection, but truly... BY MR. SIMON POTTER: Well, I believe that it is relevant. BY MR. ROGER BAKER, Q.C.: His worries, four years ago? BY MR. SIMON POTTER: Well, why belabour the point if we are prepared to let the witness answer under reserve. Let him answer and we'll move on to the next question. BY MR. ROGER BAKER, Q.C.: I'm not belabouring the point, I said he could answer. BY MR. SIMON POTTER: Q. Do you remember worrying about the validity of such a regulation? A. No. Q. And, since we've mentioned the Begin letter, or memorandum, let's just deal with it briefly; this is the Minister writing to the Deputy Minister six months previously - or seven months previously, in June of 1983. A. Uh-huh. Q. And she says here: "After careful review of the document on Alcohol and Tobacco Products Control, I would like to recommend that we proceed only with the proposal to increase by 30% the price of tobacco products through increased taxation, and the proposal on package labelling and advertising..." Have you ever seen this letter before, Mr. Collishaw? A. Yes, I have.

398 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 3O 4O Q. And when you saw this letter and read it, is this proposal regarding advertising the one we've just talked about, the proposal requiring disclosure on advertising of... BY MR. ROGER BAKER, Q.C.: Are you asking him for his interpretation of what Begin was referring to in a letter? BY MR. SIMON POTTER: I'm asking him what he, in charge of Policy Analysis and Development, understood the instructions from the Minister to be. BY MR. ROGER BAKER, Q.C.: But the instructions weren't to him; he neither received nor was the writer of the letter, Mr. Potter. You are asking him to interpret the Begin letter now. BY MR. SIMON POTTER: Mr. Collishaw has confirmed that he has seen this letter... BY MR. ROGER BAKER, Q.C.: Yes. BY MR. SIMON POTTER: ... and that he, at that time, was involved in Policy Analysis and Development. He obviously must have come to a conclusion as to whether the instructions were to do something or other. If he is in charge of policy, I want to know what he felt the policy was going to be. BY MR. ROGER BAKER, Q.C.: No, no. No, let us be aware of the situation. In charge of policy is the Deputy Minister of the Department; he had a policy position within the Tobacco Control Unit, or whatever the unit was called in 1983. But it's not established that he received this letter at that time. He said he's seen the letter before, may have been a month ago or six months ago or a year ago, Mr. Potter.

399 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 20 3O 40 I mean, it's not of dramatic importance; I simply intervene to suggest to you that you are asking the witness to correlate something in this letter with the document that's attached to it and he's interpreting a document which, in theory, should speak for itself. And his answer will be, in any event, of marginal validity. BY MR. SIMON POTTER: Do you instruct him not to answer, Mr. Baker? BY MR. ROGER BAKER, Q.C.: No, in the spirit of reasonableness, Mr. Potter, let him answer under reserve. BY MR. SIMON POTTER: Thank you. (TO WITNESS): Q. The proposal regarding advertising mentioned here in the Minister's memorandum of June, 1983, Mr. Collishaw... A. Uh-huh. Q .... when you saw this memorandum, did you take that proposal to be the one which we mentioned here, that is to say the proposal that advertising should contain disclosure of what is mentioned in the memorandum as being "known toxic substances"? A. This is the one that's further referred to as regulation under the Food and Drugs Act? A. That's my question; is that the one you took it to be? A. Q. advertising? A. Q. A. NO. You took it to be another proposal regarding Yes. And what was that proposal? That there were a series of options developed in 1983. 1982 and '83. Q. And did that series of options contain the possibility of a complete ban on advertising? A. I believe so, yes. Q. Could you undertake to find out? A. I could. We may, however, run into problems under the Canada Evidence Act around this area and again

4OO NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 3O 4O I may not be able to produce the complete package. Q. I understand. All I'm asking is that you try to find out and, if you come to the conclusion that you have a problem under the Canada Evidence Act, please simply tell me. Whether I agree with you or not... BY MR. ROGER BAKER, Q.C.: Can he tell me first? BY MR. SIMON POTTER: I'm speaking to both of you. BY MR. ROGER BAKER, Q.C.: Oh! Okay. BY MR. ROGER BAKER, Q.C.: This document then will become ITL-5. (TO WITNESS): Q. Mr. Collishaw, the next document I am showing you is - unfortunately, I have no idea what it is and that's the reason I am showing it to you is just to find out. And it's at two pages numbered by the Attorney General, 2758 and 2759; the document does not bear a date, on the other hand, it does bear reference to a file number and I have compared that file number, 9401-3-1 Volume 6, to a list which was filed in the Rothmans proceedings in the Federal Court and which your counsel believes that I possess illegally. BY MR. ROGER BAKER, Q.C.: I never said that you possess it illegally; I have said that it may have been communicated to you under a breach by another counsel in Toronto. BY MR. SIMON POTTER: Q. Breach or no breach, Mr. Collishaw... BY MR. ROGER BAKER, Q.C.: Now that you have it, Mr. Potter, enjoy it and use it well!

401 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 3O 4O BY MR. SIMON POTTER: Q. That leaked document, Mr. Collishaw, indicates that this file number, which I've just mentioned, which is number 60(b) in that list, would be dated between November '83 and April, 1984, and it's - a description of number 60(b) in that list is "Letters to and from the Minister of Agriculture and Health and Welfare regarding various policies" Can you tell me what this is; it's a document titled "Continuum of Outcome". A. I'm happy to report this is not a document that I prepared. Q. I am not surprised, by the way, Mr. Collishaw, it's - have you read Gowers? A. No, I have not. Q. I thought you had because you, normally, write so clearly. BY MR. ROGER BAKER, Q.C.: No epidemiologist worth his salt would've written a document such as this, that's... BY MR. SIMON POTTER: Q. Do you have any - have you seen it before? A. Yes, I have. Q. And did you see it - the dates that I've just mentioned, are they a surprise to you, they would be sometime between late '83 and the spring of '84? A. I think that's probably about the right time, the issue discussed in the document is tobacco sponsorship of skiing events, and I believe that was an issue that got some discussion in the Ministry around that time. Q. And - I'll just let your counsel look at it for a while... BY MR. ROGER BAKER, Q.C.: NO, no, I've... BY MR. SIMON POTTER: Q. I'm looking at the first page, Mr. Collishaw, I'm going to make a guess, it's a blind guess, but you tell me if I'm right. Is this first page a review of what might be acceptable policies in relation to sponsorship of this particular sporting event?

402 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter I0 20 3O 40 A. Yes, I think that's probably true. BY MR. ROGER BAKER, Q.C.: Good guess! BY MR. SIMON POTTER: Q. And is there a discussion here of what would be an unacceptable policy? Ao Well, there might be, and somebody might have made a mistake, that's all I can figure out. Notice it says here: "Acceptable range" moving this way and then "Acceptable range" moving this way. (Witness pointing to document). Q. Yes. What would fall in the middle? I see the middle might possibly refer, Mr. Collishaw - I'm just asking you if this makes any sense at all, since you've seen this document, apparently you were there when it was discussed - a reference to something sibyllinely called "Muted Acknowledgement Sponsorship in 1984. None in 1985" A. I think - I think the way we are to interpret this document is that these sorts of activities shown here on the... Qo There are three on the right side. A. Right, are acceptable if your objectives are to continue to have a link between skiing and smoking and that these activities over here... Q. The two on the left. A. The two on the left are acceptable if your objective is to promote a link between skiing and health. Q. I think we've gotten as far as we can on that one. Let's turn the page then. Most lawyers, Mr. Collishaw - there've been studies on this, most lawyers are not visual people, they're verbal ones and I like this second page which is made up of words rather than the diagram. It is entitled "Means that Health and Welfare can Undertake to Achieve Outcome", and I see "Unacceptable Means"; "Ineffective Means", and "Possibly Effective" and "Acceptable Means" Under the "Unacceptable Means" there is doing nothing; of course, the government never decides to do nothing, does it? "No further actin", but I also see "Legislation to Ban Advertising" Now, were you involved in the discussion of this question at that time? A. I was generally - I was involved in the discussions, yes.

4O3 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 3O 40 Q. And to be fair to you, the comment next to this indication of "Legislation to Ban Advertising as Unacceptable", I see the comment "Lack of consensus necessary for this move" Is that the only reason which was given at that time, Mr. Collishaw, for stating that it was unacceptable to ban advertising? BY MR. ROGER BAKER, Q.C.: Given on that document, or given by somebody BY MR. SIMON POTTER: Q. At the discussion at that time, which Mr. Collishaw states he remembers. A. I said I recall generally being involved, and as to specific recall of reasons given in the context of this particular discussion, I don't have specific recollection of what other reasons might have been cited during those discussions. Q. Did the discussion of the possibility of banning advertising go any further than that, at that time? A. There were - consideration was being given to that option in other contexts; there was a particular concern about the issue of tobacco sponsorship of ski events and some policy development activity of several branches of the department was focused on that. But - and - but in addition, there were other - other policy research was going on at the same time, in other contexts about banning advertising. Q. Uh-huh. and on this document, Mr. Collishaw, seeing this page has references to "C.S.A.", which appear at least twice on that page... Q. Uh-huh. Q .... and that page being joined to this unintelligible diagram referring to skiing, is it fair to conclude that the advertising mentioned here is the advertising of a sponsored athletic event, or were they talking about all advertising at that time? A. I can't tell from this document. Q. You can't tell. Thank you. Let's make this one then ITL-6. And the next document which we are going to be looking at, unfortunately, is similar in diagram form. The is a document which appears under the Attorney General's pagination 2593. Similarly, - oh, I'm sorry,

4O4 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 3O 4O this is dated April 17, 1984; could you look at this quickly and see that it refers to "C.S.A. Advert." "C.S.A. plus cigarettes"; is this part of the same discussion? A. I expect it would be, yes. Q. Now that you've looked at it a few minutes more, can you say that in fact it was? A. Yes, it was part of the same discussion but that went on for several months, I believe. Q. Uh-huh. And this is a tabulation of various alternatives which are available; are these policy alternatives, Mr. Collishaw? A. It's difficult to tell; it's pretty cryptic. Q. Pretty cryptic. Anyway, as far as Canadian Ski Association - is that what "C.S.A." is? A. Yes. Q. And "Advert. with Advertising", there is a column and we see that in the second row in that column there is discussion of alternatives A and B. A. Uh-huh. Q. Alternative A being "Control Media Advertising", and Alternative B being "Add counter-advertising including labelling". A. Uh-huh. Q. And do you see, when get to consequences, we read that the author of this document wrote: "Appears to affect industry but little impact on reducing consumption." A. this document. Q. A. Uh-huh. Did you write this document? I have - I'm pretty sure I did not write Do you know who did? I don't know for sure, but it does say "Lab. Centre for Disease Control" on the bottom, which gives me a clue that it very probably would're been David Bray. Q. Whose handwriting is that on the document? A. I don't know. Q. Okay. And do you remember the discussion at that time, Mr. Collishaw, of this question: "That the possibility of controlling media advertising would appear to affect the industry but little impact on reducing consumption." Do you remember that discussion?

4O5 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O A. No, not specifically, I don't recall. Q. And do you remember giving any information relative to that question, whether it would have any impact on consumption? A. I don't recall specifically doing so, but I may have done so. Q. And do you remember having at that time any evidence that this statement here: "That it would appear to affect the industry but have little impact on consumption." was incorrect? A. I don't recall having any information that that statement would be either correct or incorrect. Q. And this will become ITL-7. BY MR. ROGER BAKER, Q.C.: Mr. Potter, let's take a five minute break and then you can continue. BY MR. SIMON POTTER: That's fine. RECESS. 3O 4O

406 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter DEPOSITION OF MISTER NEIL E. COLLISHAW NEIL E. COLLISHAW UNDER THE SAME OATH i0 2O 3O 4O BY MR. SIMON POTTER: Q. Mr. Collishaw, we are moving into April now - April, 1984, and I'd like to show you a document which is numbered 1251 through 1254, and in fact it turns out to be three documents, Mr. Collishaw; the first is a two page letter sent by the Minister, Monique Begin, to a Dr. Nahornick, President of the Canadian Lung Association, inanswer to a letter, which is also there, which went in the other direction on March 6, 1984, and to which was attached a one page document, which is also there, "Policy Statement on Smoking and Health of the Canadian Lung Association" Now, do you see, Mr. Collishaw, that the Policy Statement of the Canadian Lung Association, dated February of 1984, included as No. 2 of its seven point Policy Statement that: "The Canadian Lung Association favours a total prohibition of all forms of tobacco promotion and advertising." A. Yes. Q. Did you see this document in 1984? A. Yes. Q. And let's look now at the letter which the Minister - this was your Minister at the time, was it not? A. Monique Begin was the Minister, yes. Q. She was your Minister at that time, was she not? A. She was everybody's Minister; of National Health and Welfare. Q. Minister of Health and Welfare. to Dr. Nahornick on April ii, 1984. A. Uh-huh. Q. And in - she refers to the question of an advertising ban at the second paragraph of the second page. Before going into the details of the thing, Mr. Collishaw, did you help prepare this letter? A. I don't recall specifically preparing this letter, or helping to prepare it. But I mean... the Minister She write

407 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter I0 2O 3O 40 Q. An~, to shorten things, I remember the answers that you gaveregarding similar letters when Mr. Irving was asking questions of you: as a matter of departmental practice, are these letters not prepared by various levels of the department in which you work, receive successive approvals and get passed up to the Minister for signature; is that not correct? A. That's correct. At this - at this stage though, 1984, I wouldn't have been one of the persons approving the letter: it would're been approved by the Director of Bureau of Tobacco Control and Biometrics, that would have been the first level of approval at that time. Q. Okay. and in this paragraph - the second paragraph on the second page of the letter, Monique Begin confirms in fact what you said to us a few minutes ago, that: "... banning of tobacco advertising and promotion has been considered." But she goes on to say: "But there are doubts about its effectiveness in reducing tobacco consumption." On sentence later she says: "In countries where it has been tried, Norway and Finland, for example, both countries that prohibited all forms of tobacco advertisement, tobacco consumption did not fall significantly following introduction of these prohibitions. However, price increases, especially in concert with other tobacco control measures have proven effective." NOW, are you aware, Mr. Collishaw, of any evidence which was available to that department at that time, which would contradict what she is saying? A. No. Q. Thank you. Let's make this one ITL-8. Mr. Collishaw, we are moving on now to a document, which

4O8 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 3O 4O bears the pagination from the Attorney General, 1444 through 1464, and it's a covering memorandum, with another covering memorandum, with a May ii, 1984, letter from the Canadian Council on Smoking and Health, addressed to you, and then the notes for an address to the Public Education Committee of the Canadian Cancer Society, on May 27, 1984. Okay, now I'm looking first of all, Mr. Collishaw, just to put this in perspective, at the second page of this document, the one numbered 1445. Read the document and I summarize the thing for you; you were invited, were you not, to address the Executive Committee of the Canadian Council on Smoking and Health, and you proposed to use the identical, or a slightly modified version of a speech which you had previously given to the Canadian Cancer Society? A. Yes. Q. Now, dealing with that speech, which begins at page 1447, before you gave it, was the contents of that - were the contents of that speech not approved by your superiors? A. Sorry, before I gave the speech to the Canadian Cancer Society? A. That's correct. A. Yes, I believe it would have been approved. Q. And then later on, did you give that similar speech to the Canadian Council on Smoking and Health? A. With some modifications, yes. Q. And before you gave it with some modifications, was that approved? A. Yes. Q. And if we turn to the page numbered 1457, you refer to tobacco control elsewhere in the world and say that you've: "... chosen four countries that offer interesting lessons for the directions we may wish to choose here in Canada." And you being with Norway and refer to the 1970 adoption of a Law banning advertising in Norway - I'm sorry, a declaration by the Parliament of Norway that it intended to pass such a Law and then the 1975 adoption of that Law. Q. Uh-huh. Q. And you state that: "Per capita tobacco consumption remained more or less constant,

409 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 20 30 40 showing no obvious upward or downward trend, both before and after the Law was passed, from 1970 to 1980." And you finish off the paragraph by pointing out that for the three year period from 1980 to 1982: "... there were three price increases in quick succession of 29%, 22% and 10%." And you write: "Per capita tobacco consumption dropped dramatically during that period." Was that paragraph changed when you give it a second time - when you gave the speech the second time? A. I - I don't recall; I doubt that it would be. Q. And do you doubt that it would be because in fact those were the facts at that time? A. Yes, including the sentence that you did not read in that paragraph. Q. And that sentence is: "There is evidence that the proportion of 13 to 15 year olds who were smokers declined following passage of the new Law." A. Yes. Q. And if we go to page 12 of the speech, it is numbered 1459 by the Attorney General, you apparently gave a slide show in your speech - I'm not asking you to give it now, Mr. Collishaw, but you obviously advised the Canadian Cancer Society, and I am asking you whether you also advised the Canadian Council on Smoking and Health that, as well, in Finland tobacco consumption remained constant following introduction of a Law banning advertising, I quote: "... much the same as the experience in Norway." Did you advise both groups of that?

410 NElL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 20 30 40 A. Yes. Q. Let us produce this document then as ITL-9. And in relation to those two paragraphs to which I've just draw your attention, Mr. Collishaw, were you in - in May or June of 1984, or was your department, to your knowledge, in possession of any evidence which indicated the contrary of what you advised those two groups? A. They were certainly possession of the various papers that might have stated things that could be considered contrary to that. That is, people - there are various writings around, where people have said consumption declined dramatically in Norway and Finland. Q. You mean to say there were some people that held a view different to yours? Is that what you are saying? A. It's been known to happen, yes. Q. Moving along then, Mr. Collishaw, I am going to a document which beings at the Attorney General's number 2674 and ends at 2689, and they are together, Mr. Collishaw, for non other reason than that they seem to be related, the one page to the other, but I'm not going to be asking you questions about every page. And I draw your attention to the second page of those documents, which is a memorandum from Donald Bray, the Director of the Bureau of Tobacco Control and Biometrics, to Mr. Brian Roadhouse, assistant Director General of the Health Promotion Directorate of the Health Services and Promotion Branch, and he says in the memorandum: "The attached has been prepared for the information of the Deputy Minister." Also included is information for the Deputy to send to the. Minister: "If you are in agreement, please pass this note and accompanying material to Guy Bujold in P.P.& I." What's that? A. Policy Planning and Information Branch. Q. Okay. Now at page 2682 is your article and Byron Rogers' regarding "Tobacco in Canada" Q. Uh-huh. Q. Do you know, Mr. Collishaw, whether that article was attached to, either the memorandum which went to the Minister, or the memorandum which went to the Deputy Minister?

411 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 3O 40 A. They were certainly attached to this whole package of stuff, which looked like it was going to - it was going to go to Monique Jerome-Forget for forwarding to the Deputy Minister. From a document it's difficult to know, however, whether they went beyond the office of Madame Jerome-Forget, because I don't see any signatures after David Bray's signature. Q. What does that mean, you don't know whether it got to the Minister or the Deputy Minister? A. That's right, I don't know. But the documents you asked me about, the attachments were attached originally and it would normally wend its way up the chain of command. But how high it got, I don't know. Q. Well, if you don't know then let's leave it. The next document I want to show you, Mr. Collishaw is one similar to letters that you've seen before, it's a response from the Minister to an inquiry from a citizen. This letter is dated July 6, 1984, it beings at Attorney General 3426 and, if we included the letter having come from the citizen, it ends at 3430; it's a letter addressed to Mr. Shaun O'Roark. Now, can we say the same thing about this letter, Mr. Collishaw, that we said about the others, you don't remember this letter specifically, you don't remember helping to write this letter specifically, but it is the kind of letter which went through various levels of approval before getting to the Minister to be signed? A. Yes. Q. And would that hold true for the second paragraph on the second page of that letter, which refers, as have other exhibits that we have mentioned, to Norway and Finland and suggest that a total ban on advertising has little effect on tobacco sales; would that be true about that paragraph too? A. Yes. Q. And I see that in the middle of the paragraph there is a reference to: "... a price increase of 30% could be expected to reduce consumption by about 10%". That arithmetic, is it not - is that not the arithmetic which you came up with and proposed to the Minister some documents ago? A. Yes. Q. And are you aware, Mr. Collishaw, of any evidence that you had, or that your department had, which

412 NEIL E. COLLISHAW (for the Applicant) Cross-examination by Me Potter i0 2O 3O 4O would contradict what is contained in that paragraph? A. Well, the business about the 30% and 10% is - boils down a whole lot of scientific information; if we look at all the econometric studies that have been done, they cover a wider range of effect of price on consumption than shown here. The various studies that have been done range from an elasticity of minus .2 to around minus .7, which would translate into - like minus .2 meaning if you raise the.., let me start again. This 30%, 10% business is a way of summarizing in just a few words, a few numbers - a wide range of observations that have been made by econometricians by picking a value that appears to reflect a kind of a middle range of experience, compared to what's been observed in a whole lot of econometric studies. So, some studies which show something that is higher than this and some would show things that are lower; in one sense I suppose that could be taken as a contradiction, but I think it's rather that they are consistent within a - within a range of observations. Q. Uh-huh. What about the first part of the paragraph, were you or was your department, to your knowledge, in possession of evidence which would contradict what the Minister was telling that citizen? A. Certainly we had various statements that people had written, that would be somewhat different than that but not evidence, I don't think, in the form of information of data. Q. So, once again, your testimony is consistent with what you've given in relation to the last letter that we mentioned, what you had, which was different from that, was simply statements of people who simply did not share your view. A. They may have thought they were basing their observations on date, but that might not have always been the case. Thank you. Now let's make that ITL-IO. (DISCUSSION OFF THE RECORD) (ADJOURNED TO 9:30 A.M., APRIL 14, 1989). K. KHANNA Official Court Reporter

413 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O April, 14th, 1989 APPEARANCES: SIMON POTTER, ESQ. GREGORY BORDAN, ESQ. PIERRE BIENVENU, ESQ. (OGILVY RENAULT) ATTORNEYS FOR APPLICANT ROGER E. BAKER, ESQ., Q.C. (BAKER NUDELMAN) ATTORNEY FOR RESPONDENT CLAUDE JOYAL, ESQ. Ms. PASCALE LAGACE Ms. GERALDINE SPARROW REPRESENTING THE ATTORNEY GENERAL OF CANADA GEORGES THIBAUDAU, ESQ. (MACKENZIE GERVAIS) COUNSEL TO APPLICANT RJR MACDONALD INC. 3O 4O (EXAMINATION FOR DISCOVERY AFTER CONTESTATION OF NEIL E. COLLISHAW) HAD APPEARED: MR. NEIL E. COLLISHAW NEIL E. COLLISHAW 42 years of age, Public Servant 134 Caroline Avenue Ottawa, Ontario DULY SWORN EXAMINATION BY MR. SIMON POTTER ATTORNEY FOR THE APPLICANT: Q. Mr. Collishaw, continuing on from yesterday,

NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 4O we finished off yesterday on an Exhibit which became ITL-IO, and just to remind you of it, you remember it went to Mr. O'Roark, the man without the "e" on his name. Do you remem- ber? And that was an example of a letter, it was an example of a series of letters in which the Minister, in correspond- ence to various citizens, had said that a ban on advertising would likely have no effect on tobacco consumption. Do you remember that series of letters? A. Yes. Q. And just so that the reader of the transcript is able to put things into a chronological perspective, no need to produce the thing or get it out, I'm showing you my copy, Mr. Collishaw, of Exhibit RJR-5 , something you discussed two days ago with Mr. Irving, as the letter to Mr. Wiebe, dated November 19, 1984. And you remember Mr. Irving drew your attention to the paragraph saying that "a total ban on advertising of tobacco may have some intuitive appeal. Unfortunately, it has had little effect on tobacco sales in countries where it has been tried." Is this another example of a letter of that kind which fits into that series? A. Yes. Q. And can we say the same thing about this one that we've said about the other ones, Mr. Collishaw, that you don't remember this particular letter? Ao That's right. Q. And you don't remember you yourself worked on preparing it? Is that right? A. That's right. Q. But it is the kind of letter which would have received a series of authorizations before going under the Minister's pen? A. That's right. Q. And this paragraph that we're looking at, and this statement, through it's not identical it's very similar to the kinds of statements we've seen in the previous letters. A. Yes. Q. Would I be right, Mr. Collishaw, in taking this as one of those stock paragraphs? - it's in a bank of paragraphs which can go into Ministers" letters, the kind of stock paragraph we saw at the beginning of my Examin- ation yesterday. A. I can't be sure about it word for word; there might be some modifications from time to time in some of these paragraphs, but in general the same sorts of ideas

415 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 4O were repeated in several letters, yes. Q. And would you be able to find out whether this paragraph was in one of those banks of stock paragraphs? A. No, I don't think so. Q. I am persuaded, against my better judgment, to confirm for the transcripts that the pronoun "this" is a reference to Exhibit RJR-5, which an insidious reader of the transcript would already have grasped. A. I'm entirely in agreement. Q. Thank you, Mr. Collishaw. We are moving on now to a document which bears a handwritten date, March 20, 1985, and which bears the Attorney General's page numbers 14810 through 14814, and it's entitled "Tobacco Policy Op- tions" I'm sure you've seen this before, Mr. Collishaw. A. I don't have specific recollection of seeing it before. Q. The reason I was so sure your answer would be different, Mr. Collishaw, is that it is entitled "Tobacco Policy Options" A. Yes. Q. And were you not at that time the senior person in the Department doing policy analyses and development? A. This would have been 1985 so I would have been Chief of Policy and Analysis in the Bureau of Tobacco Control and Biometrics. However, other policy analysis on tobacco issues was also going on in the Policy Planning and Informa- tion Branch, among other places, at that time. Q. I see, okay. Well, let's just explore it a bit further even though you don't remember having seen it. A. Yes. Q. Maybe we can get something out of it. I'm looking at the second page of the document, that is the page just beyond the title page, and it is numbered 14811, and we see that the whole page deals with tobacco advertising and marketing. Jumping down, and I do it because I think it puts things in perspective a bit, under "TV and Radio Advertising and Marketing", we see that "Alternative 3" is a legislative ban on all TV and radio tobacco advertising and promotion, perhaps as part of acomprehensive ban on advertising and promotion. First of all, at that time was there any TV or radio advertising? A. TV and radio advertising of tobacco were res- tricted under the Voluntary Code of the manufacturers.

416 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 4O Q. Well, are you aware of any TV or radio advert- ising in 1984 or 1985 of tobacco products in Canada? A. There was some indirectly through sponsorship announcements and occasionally you would see a tobacco brand name in association with a sponsored event on television. Q. Oh, I see. So without seeing and ad for Players cigarettes you might see a Players-sponsored event advertised on TV? A. Yes. Q. Now, coming up back to IA, this document talks about labels, warnings on packages and advertising. A. Yes. Q. Going across here. Can you confirm to us, Mr. Collishaw, that in March of 1985 it wasn't even considered to place a total ban on advertising, in this page? A. No, I can't confirm that. I didn"t prepare this document. Q. Okay. Turning the page, and what I'm looking at now is "Print Advertising" under "D" - and I must apologize, Mr. Collishaw, for having been unfair to you - I should have shown you that before and with the volume of documents I forget that A, B and C did not run into D, and I apologize to you for that. But under "D" for "Print", in fact, under Column 3 there is: "Legislate a ban on print advertising perhaps as part of a comprehensive ban on advertising promotion." Now, the document is titled "Tobacco Policy Options ranked from 1 to 3 according to Strength of the Proposed Action and its Likely Effectiveness". A. Yes. Q. So here we have a proposed and alternative course of action, and the legislated ban on print advert- ising is there under "3" A. Yes. Q. I take it that's the strongest? BY MR. ROGER E. BAKER, Q.C.: The witness has said that he has never seen the document before and you can read as well as he can, Mr. Potter. I don't know that it's fair to ask him to interpret

417 NEIL E. COLLISHAW (for the Applicant)Examination by Me Potter I0 2O 30 40 the document and take it as something. I mean it's not open to him to interpret a document that he hasn't read. BY MR. POTTER: Q. Mr. Collishaw, would you agree that a legistated ban on print advertising is rather more severe than developing a Code with the print media? A. I would agree that it's stronger and likely more effective, as indicated on the front page of the document. Q. Well, you refer to the front of the document. It says "... ranks from 1 to 3, according to the strength of the proposed action and its likely effectiveness". A. Yes, not its severity. You used the word "severe". Q. I'm sorry, I thought that would go very well with "strength", but you related strength to effectiveness? A. Yes. Q. Oh, I see. And can you tell me what evidence was available to you regarding the effectiveness of a legis- lative ban in March of 1985? A. It was clear that if advertising were to be banned, then there would be no more obvious inducements of the sort that advertising present that would encourage people to use tobacco products. Q. Can you tell me, Mr. Collishaw, whether any more evidence was available to you in March of 1985 than was available to you in July of 1984 when we spoke about the letter to Mr. O"Roark, which is ITL-10, or in November of 1984 when we spoke aboutthe letter to Mr. Wiebe, which is RJR-5? Was there more evidence regarding the effectiveness of an ad ban in March of 1985 that there was in November of 1984? A. There may have been a little more, but it would have been perhaps a few scientific papers here and there; it wouldn't have changed the essential nature of the evidence, no. Q. It wouldn't, okay. On the question of effective- ness, I see that No. 7, which is on the last page of this document, page 14814, deals with tobacco taxation, and when we look at the columm "Documentation" we there see a discus- sion of effectiveness as opposed to what I called severity and what you suggest the document calls strength, and we see it written:

418 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter I0 20 3O 40 "Experience in Britain, Norway and Finland indicates that tobacco tax increases are the most effective way of curtailing consumption". not so? not so? A. Yes. Q. Did you have any evidence then that that was A. No. Q. Do you have any evidence today that that's A. No. Q. Well, let's make this ITL-II. Once again, Mr. Collishaw, only in order to keep the reader of this transcript in some kind of chronological perspective, I remind you of Exhibit RJR-6 which you discussed with Mr. Irving two days ago in the RJR Examination, and it is a January 16, 1986 memorandum from you to Mr. Paul Melia, Tobacco Products Unit, Program Division, Health Promotion, and you enclosed questions and answers which I take it you prepared. A. I had a hand in preparing them. Q. And in submitting them to Mr. Paul Melia, did you not in fact approve them? A. Yes. Q. And you personally did approve question and answer 3 which appear on page 3549? A. Yes. Q. And trying not to double up on Mr. Irving's questions to you, I note that in the bottom part of the answer which you proposed it is said that: "The possibility of further restrictions on cigarettes ads is being examined as part of a more comprehensive approach." When you wrote that, Mr. Collishaw, did you have in mind regulation and restrictions or did you have in mind a ban of Canadian advertising? A. I probably had in mind a range of options includ- ing both of the things you mentioned. That, after all, is the sort of work I do, is prepare different options for Governments to consider when they make policy.

NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 30 40 Q. And can you point to any document -- and I realize that's a little difficult as a question because there are so many documents but I'm forced to ask it, Mr. Collishaw, because I've been through all these documents and haven't found any -- can you point to any document before 1987 let's say in which you actually did put forward the proposal that advertising should be banned? A. There were documents such as that prepared in the Department, yes. Q. Recommending that there should be a ban? A. Well, we're getting into an area where I again have difficulty. The documents that lead to Government decisions, such as Cabinet memoranda, are protected under the Canada Evidence Act. Q. Well, this puts now me in a difficult position, Mr. Collishaw. Are you saying that there are no documents available to us in which ad ban was actually recommended by your Department, that we can see, but there are documents that we cannot see which did recommend it? A. There may be documents that made that recommda- tion in the Department but I myself am not sure which ones would be classified as confidential under the Canada Evidence Act and which ones would not. Q. Well, I will ask you to undertake then to make that effort to find out whether before January i, 1987 there was any document coming from your Department actually recom- mending a ban of Canadian advertising, and to undertake, secondly, to provide me with copies of those documents, and thirdly, in case any of those documents you find you cannot give because of some kind of the Cabinet constraint, that you tell me the date and give me some kind of detail about the document and advise me on what grounds I cannot have it. BY MR. ROGER BAKER, Q.C.: With respect to the three suggestions or under- takings just made by Mr. Potter, I have difficulty only with the last and I will suggest to him that in the event there are documents the nature of which he seeks on which there is a claim of the Queen's Confidence under 36.3 of the Canada Evidence Act, it may not be permissible for us to describe the document which itself is confidential, but we will undertake to let Mr. Potter know that there are

420 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 3O 40 documents which exist which cover the subject over which confidence is claimed and we can arrange to perhaps choose the appropriate forum to deal with any challenge that he might wish to bring on the issue of confidentiality. Is that reasonable to you, Mr. Potter? BY MR. POTTER: Yes, that's fine. I might say for the record while we're discussing this, Mr. Baker, that if it turns out that there are no such documents which are available to me and that you can disclose, but that there are some to the Cabinet which you cannot disclose, I will be incredulous. Q. Let's move on, Mr. Collishaw. We're going to go to April of 1986, so we're coming close now to the fateful day. And what we're looking at here, Mr. Collishaw, is a document which the Attorney General has paginated 10265 through 10270 and it is from the Director of the Health and Social Services, Policy Analysis Division, whose name is Alistair Thomson, to the Departmental Tobacco Work Group. First of all, who is the Departmental Tobacco Work Group? A. I was a member of it as was Dr. Thomson, some of his staff and my colleagues in the Health Services and Promotion Branch were also members; that would have been Barbara Ouellette and at certain times Paul Melia as well I think. Q. Okay. Now, what we have here, Mr. Collishaw, is what Mr. Thomson calls "An outline for discussion which includes preliminary ideas", and all the ideas have to do with the marketing, the advertising and the labelling of tobacco products. I'm drawing you attention to the first page, "A) Principles for a New Tobacco Products Marketing Code" Do you know whether there was an old Tobacco Products Marketing Code? A. The one in question would have been the one which the members of the Canadian Tobacco Manufacturers Council had managed and run for many years. Q. Do I take it then that what is being discussed here in this memo which came to you is the idea of amending the Code of the C.T.M.C.? A. Yes. Q. And until the date of this document, April 7, 1986, and indeed until Bill C51 became law, the Code

421 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 3O 40 was a voluntary code, was it not, Mr. Collishaw? A. Yes. Q. There was no legislation to enforce it? A. That's right. Q. And am I right that at this time, in April of 1986, there were discussions with the C.T.M.C. to bring changes to that Code? A. Members of the Department, including the Mi- nister, were having such discussions, yes. Q. And going down Mr. Thomson's outline, in Section A where he says "Principles for a New Tobacco Products Market- ing Code", at number 1 he writes or suggests -- in fact, I'm going to be asking you just what he's doing here: "l) No form of tobacco product advertising or promotion except as permitted by the Code. 2) Only advertising in print media and point of purchase allowed." Now, is Mr. Thomson here giving us what he proposes the new Code should provide? BY MR. BAKER: I'll have to object to that, Mr. Potter. I don't think it's open to you to ask someone who did not draft this document what the drafter meant in the body of the document. This document speaks for itself. BY MR. POTTER: Q. Well, Mr. Collishaw, you were involved person- ally, weren't you, in the discussions of whether there should be changes to the C.T.M.C. Code? A. I have a little trouble with the word "should" in the question. There were discussions going on, as I mentioned, between the C.T.M.C. Minister and other members of the Departments, and the Departmental Tobacco Work Group was asked to look at various options and sometimes with specific suggestions and sometimes with less specific sugges- tions that could form a background for some of these discus- sions that were going on.

422 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O Q. And I put it to you, Mr. Collishaw, that in those discussions in which you were involved it was discussed whether advertising in print media and point of purchase should be allowed. A. That was one of the options that was discussed Q. It was one of the options? A .... in the Departmental Tobacco Work Group. Q. Fine. And if we turn the page to page 2 of this document we come to Point i0: "No tobacco promotion aimed at children." I take it it was also discussed in this Group, of which you were a member, whether to bring in rules to make sure that tobacco promotion or advertising would not be aimed at children. A. I don't know whether the bringing in rules was discussed. This Section is entitled"Principles" and we certainly had some discussion around those principles. You're asking me about sort of an X level of details, bringing in rules. I don't think we got too far into a discussion of that, but certainly these principles that are outlined were discussed. Q. I see. And coming back to number 3 where there's a reference to lifestyle advertising, Mr. Alistair Thomson writes: "No lifestyle advertising." 4O A. Yes. Q. I take it in those discussions lifestyle advert- ising was also discussed? A. As a principle, yes. Q. As a principle. And in those discussions -- and now I want to broaden my question, Mr. Collishaw -- in those discussions or outside those discussions within the Department in which you worked was there ever any analysis done to find out -- and I"m going to now make a list -- whether it would be possible to legislate an end to lifestyle advertising?

423 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 4O A. I think some consideration was given to that issue. Q. Was there ever any evaluation made of the likely consequence on consumption of a ban of lifestyle advertising? A. Not in any great detail, no. Q. Well, you remember our discussion yesterday of a quantitative evaluation. A. Yes. Q. The kind which was made, in fact, by you, on the likely consequence of a tax increase. A. Yes. Q. And we came to the conclusion that no quanti- tative evaluation was made of the likely consequence on consumption of a total ban of Canadian advertising. I'm asking you whether in fact any quantitative evaluation was made of the likely consequence on consumption of a ban of lifestyle advertising. A. No. However, I think I should add that, just as I said yesterday, I don"t think such a quantitative eva- luation would be possible given the sorts of information that are available to us. Q. And if we come up to number 2 where Mr. Thomson writes: "Only advertising in print media and point of purchase allowed ..." Please correct me if I'm wrong, Mr. Collishaw, but that would exclude billboards. Would it exclude anything else? A. Again, it's listed under "Principles" These things are only discussed at the broadest level. It never got down to a precise discussion of what was in and what was out under these broad principles. Q. I see. Was there any quantitative eveluation ever made of the likely impact on consumption of a Code rule or legislation allowing advertising only in print media and point of purchase? A. No, but again the discussion went as far as establishing principles. We did not proceed to detailed analysis and detailed definition of the sorts of things you're asking me.

424 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 30 40 Q. I see. And turning the page, coming back to the tobacco promotion aimed at children, which is mentioned at number i0, was there any analysis done of the possibility of coming up with legislation to make sure that tobacco promotion or advertising would not be aimed at children? A. No. Again I refer to the title of this Section, "Principles for a New Tobacco Products Marketing Code". It wasn't necessarily going to legislation and again my answer as before applies - the discussion was around broad principles rather than more detailed analysis. Q. Yes, I understand that but my question was whether there was ever a discussion of the feasibility of coming ut with some kind of rules, legislative or otherwise, of ensuring that tobacco promotion or advertising would not be aimed at children. A. Well, yes, there was some discussion of that and one way to ensure that no tobacco promotion is aimed at children is to ban it entirely. Q. Mr. Collishaw, was there any discussion of any other avenues to come to the assurance? A. I believe there was some discussion of other avenues. However, I don't think many of those discussion went very far. Q. And are you aware of any documents whatsoever -- and I ask the question because I have found some -- any documents whatsoever in which options are discussed or even considered for coming out with rules which would ensure that tobacco promotion or advertising would not be aimed at children? A. Again, the option of a virtually complete ban on advertising provides that assurance. That is the option that the Government eventually took as its policy. So that extent there are documents. Again, however, the documents that discuss a ban on advertising may be subject to restrict- ions under the Canada Evidence Act. Q. Mr. Collishaw, my question was quite precise. Are there documents in which the possibility or the prospect of coming out with legislative or other kind of rule which would ensure that tobacco advertising or promotion would not be aimed at children, and if you're unable to point to any now perhaps we could get the same kind of under- taking we spoke of before. I don't want to run around the bush about this, Mr. Collishaw, I want to be very clear

425 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 4O about what it is I'm after. I'm wondering whether there was any kind of substantive discussion of doing something less than a total ban. A. There were discussions of other options other than a total ban. Again, I have some reluctance in discus- sion what the other ones are, the one that the Government chose, because these documents may possibly be confidential. Q. Well, let's deal with things one at a time. First of all, can I get, Mr. Baker, an undertaking similar to the last one as regards any documents or memoranda discuss- ing the possibility or the feasibility of legislative or other rules to ensure that tobacco promotion or advertising would not be aimed at children. BY MR. BAKER: You have the undertaking, Mr. Potter. BY MR. POTTER: Thank you. Q. Now, let's come to the other more general question, the discussion of the prqspect or the possibility or advisability of coming out with legislation which would be short of a total ban on advertising. You say there were some discussions, you say you are fearful of undertaking to give them to me because they may be covered by this ... what was it? The Queen's Confidence? A. Yes. I live in fear of the Queen, Mr. Potter! PAUSE IN PROCEEDINGS BY MR. POTTER: Q. Well, where were we, Mr Collishaw? We were discussing the Queen's Confidence and then we came to the children and the undertaking about any documents on the question of coming up with some kind of rules ensuring that promotion or advertising would not be aimed at children. A. Yes. I'd like to perhaps make a little clari- fication about things that we might be able to find for you with these restrictions under the Canada Evidence Act.

426 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 The chaps from Rothmans, Benson and Hedges had access to pretty well all of the files that we have and they didn"t take everything that was there - I guess they got tired or something - but my uncertainty around what might be Queen's Confidence and what might not be is mainly related to the fact that they might have been a little less assiduous in selecting documents then they could have been, and I'm not really sure. So there might be things that they didn't select that relate to this, but it is the case that they had access to virtually everything. So if you didn't see it, in all likelihood it is highly likely that such a docu- ment does not exist. 2O 3O 40 Nevertheless, there remains some tiny bit of uncer- tainty just around that, that process of selecting documents, and I just wanted to make it clear where my uncertainty lay in that regard. Q. Thank you, Mr. Collisbaw, that's all we're seeking to do, is to clear up some of this uncertainty, and let me assure you that I will not be pushing you to breach a confidence to Her Royal Highness. I may argue that you can give me a document without breaching that confi- dence, but I will not push you to breach a confidence. Now, while we're on this topic, we've got an April 1986 document making it clear that there was discussion of various policy alternatives in relation to the advertising of tobacco. Is that not correct? A. Yes. Q. And whil'e this discussion is going on there are discussions at the same time with the Canada Tobacco Manufacturers Council regarding the possibility of making amendments to their Voluntary Advertising Code. A. Yes. Q. Am I correct? Now, between, let's say, the beginning of 1986 and the introduction of Bill C51 in 1987, can you tell us what policy options were considered short of a total ban of Canadian advertising? A. Well, it's certainly the case that Mr. Epp did consider revisions to the Marketing Code, the Advertising and Promotion Code of the Tobacco Manufacturers Council, and I think your clients would be well aware that some of the discussions Mr. Epp had with them dealt with that subject. This document we were looking at before contains some prin- ciples for a Code and I've indicated that there was some

427 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 40 discussion, at least at the level of principles, of those ten items. Other options were also considered. However, again I get in the area dealing with things that may be protected under the Canada Evidence Act. Q. Well, it may very well be as a maxim -- and I don't want to concede anything for the moment -- but accept- ing the position that you and your Counsel have taken the past few days, it may be that you do not want to or can't provide documents which actually went to the Cabinet or recommendations which were given to the Cabinet, but you can certainly tell me which policy options were considered in your policy analysis and development, can you not? A. We certainly considered a wide range of things. I may not be able to point to any documents that relate to those considerations, however. BY MR. BAKER: Feel free to discuss those things without documents, if you recall. BY THE WITNESS: A. Well, certainly in 1986 and before and since we have had thoughts and discussions around a wide range of activities that could be undertaken to achieve public health objectives concerning tobacco, and these range from carrying on with the status quo through to prohibiting the sale of tobacco products and include banning advertising and include variations in the revisions to the existing Marketing Code and legislative action that would restrict tobacco advertising and do other things but perhaps not ban it - sure, a whole range of things has been thought about and discussed by me and by others in the Department. BY MR. POTTER: Q. And on the topic of advertising ... A. Yes? Q .... you confirmed to me that even the possibility of status quo , that is to say leaving things the way they were ... A. Yes. Q .... was considered as a policy alternative?

428 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter l0 2O 3O 40 A. Yes. Q. Now, I'm going to ask a few questions, Mr. Collishaw, only as an attempt to short circuit a whole range of questions which would be very detailed. But you've already told me that there was no quantitative evaluation made of the likely impact on consumption of the total ban of Canadian advertising. Can you tell me whether there was any quanti- tative evaluation of the difference between leaving status quo on one end of this very long continuum and the total ban on the other end? Ao We did not conduct a quantitative analysis -- again, I return to the point that I don't think such an analysis would be possible -- but certainly we've analyzed the pros and cons of the various policy options with respect to their feasibility, effectiveness, generally, and their relationship to public health objectives. Q. Well, for the time being I'm only talking about the effect on consumption, and I'm asking now about the quantitative evaluat{on. You say none was made and you explain that you think-all the variables made it perhaps too difficult to come up with a quantitative evaluation. A. Yes. Q. Still on the topic of the effect on consumption of a total ban of advertising, was any other kind of eva- luation or guess hazarded in order to assess whether this thing would reduce consumption at all? A. Certainly it was viewed that options that includ- ed several actions adding up to a comprehensive approach of dealing with tobacco, a comprehensive, consistent health- oriented approach dealing with tobacco, including res- trictions on advertising as well as other measures such as restrictions on smoking in work places, smoking in transit vehicles, taxation measures, improved health education and anti-smoking advertising, improved programs 'in schools, a whole range of things, these options that had many compo- nents and added up to a comprehensive health-oriented ap- proach to dealing with the problem were viewed as favorably as being likely more effective. Q. Was any guess hazarded at what kind of an effect that would have on consumption? A. Yes. Q. Do you remember the ten percent (10%) figure when we talked about the tax? Was any guess hazarded when we talked about this?

429 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 4O children are. A. A. The analysis that we did led us to the conclu- sion that comprehensive programs could lead to continuing declines in tobacco consumption. However, with so many variables at play, it really wasn't possible to estimate in quantitative terms what the rate of continuous decline in tobacco consumption might be, but given the experience that was available to us to make these judgments, it seemed that such comprehensive programs would discourage consumption over the long term and hopefully woui@ provide greater in- formation and more consistent information to people about the serious health hazards associated with tobacco use. Q. Now, about three questions ago when you explained this comprehensive approach you mentioned advertising res- trictions and I come back to it because I want to be fair to you, Mr. Collishaw. In my mind, advertising restriction encompasses a range ... A. Yes. Q .... which is less than a total ban. A. Yes. Q. So I'm going to have two questions for you. In this comprehensive approach which you are mentioning, and many of the late documents do, of the documents after Bill C51, explain it as part of a comprehensive approach, but in this comprehensive approach with all these educational programs, the restrictive measures for the employees which we see downstairs in this building ... Also upstairs in this building. Is there smoking upstairs in this building? No. No smoking upstairs. They're all smoking downstairs where all the At any rate, all the comprehensive approach There's always room for improvement in govern- ment policy, Mr. Potter. Q. I've noticed. In this comprehensive approach, Mr. Collishaw, of all the things that you mentioned only one of them deals with expression, something guaranteed by the Charter. Was there a discussion in your Department of the likely effect on consumption of doing everything except restricting advertising? - of having the whole range of your consistent approach with all your educational pro- grams, all your restrictions on the rights of people to smoke in vehicles and at their places of work and in res- taurants and so on, doing all of this but not restricting

430 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 40 advertising - was there any discussion of teh likely effect on consumption of doing that? A. Yes, I had some thoughts and discussions of that proposal. Q. And were any of your conclusions committed to paper? A. Yes, in documents that I'm quite sure would be held to be confidential. Q. And do you mean by that, Mr. Collishaw, that the only documents in which these thoughts of yours appear are documents which went to Cabinet? That there are no documents which were simply internal to your Department? A. Well, the matter is discussed. There's some brief discussion of it in this document, for example. There may be some brief discussion of it in other documents that you have, but I think the other discussions of it would be in these confidential documents. Q. Wel, Mr. Collishaw, the fact is I have seen none of it. I have seen no discussion and no ideas committed to paper as to the likely effect on consumption of doing all these things which you propose as part of a consistent comprehensive approach, except restricting advertising; I've seen none of that. A. Well ... Q. And I'm asking you: A) Are there any documents? And you say "Yes, there are" but you believe some of them went to Cabinet. B) If there are, can you please produce them? A. Again, I'm quite sure that the documents contain- ing such discussion would be the ones that went to Cabinet. There may be one or two that were missed by your colleagues from Rothmans, Benson and Hedges, but in this particular case I doubt it very strongly. I doubt there would be such documents. Q. Well, I'm asking for the undertaking to produce all documents which consider that question: The likely effect on consumption of doing all these other things that you have mentioned and which are mentioned in ipso facto justifictions of C51, except to restricting advertising. Do I have that undertaking, Mr. Baker, under the same terms as before?

431 NEIL E. COLLISHAW (for the Applicant) EXamination by Me Potter & Argument i0 2O 3O 4O BY MR. BAKER: Yes. BY MR. POTTER: Q. Now, that undertaking that we just got, Mr. Collishaw, deals with the prospect of doing everything in this consistent, comprehensive approach that you mention, except restricting advertising. I would now like a separate BY MR. BAKER: Before you get to the separate one, Mr. Potter, so we understand what it is you're seeking and what we have undertaken, there seems to be a suggestion from the last few questions and the last few answers of Mr. Collishaw that there might be one document, using "one" as a descriptive figure, which would in fact deal with every conceivable range of options short of an ad ban. Such an animal or such a document in the form that you're dreaming that it may exist may in fact not exist irrespective of what Mr. Collishaw has said, because he puts policy options and his Department puts, I believe, policy options on a continuing basis. So we'll seek what it is you're looking for but it may not sure it exists in quite the form that you think it does. That's all I'm suggesting to you. BY MR. POTTER: Well, all I can say, Mr. Baker, is I'm not asking for a document which does not exist. I'm asking for whatever document does exist on the question of whether there was any effect forecast for consumption. BY MR. BAKER: From every other conceivable option short of a total ad ban. That's the way I understood it. BY MR. POTTER: - No, that was an undertaking or two ago. This one

432 NEIL E. COLLISHAW (for the Applicant) Argument i0 2O 3O 4O is ... this Bill C51 is justified by Mr. Collishaw just a few answers ago as being part of an overall comprehensive consistent approach which included a variety of measures including restrictions on the right to smoke, educational campaigns, etc., etc. BY MR. BAKER: Well, he didn't justify C51 on that basis. He simply suggested to you there were a variety of things dis- cussed on a policy option basis within his Department. That's what he said. He wasn't trying to justify Bill C51, Mr. Potter. BY MR. POTTER: Well, whether he was or wasn't, I don't want to get into a debate as to what the transcript will show. Nevertheless, there was a discussion of this comprehensive overall approach. BY MR. BAKER: Yes. BY MR. POTTER: And this most recent undertaking which I'm request- ing of you is whether there is any document discussing the likely effect on consumption of tobacco products of having something which is just short of totally comprehensive - that is to say doing everything else but not restricting advertising. BY MR. BAKER: Yes. BY MR. POTTER: Okay. Several undertakings ago, I think it was two, there was one dealing with simply the question of the advertising ban, whether there are documents dealing with the likely effect on consumption ...