Tobacco Documents Online

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.