Tobacco Documents Online

433 NEIL E. COLLISHAW (for the Applicant) Argument & Examination by Me Potter BY MR. BAKER: i0 2O 3O 4O Yes. BY MR. POTTER: ... of the advertising ban. And now I come to a brand new undertaking. Since this most recent one has to do with the comprehensive approach minus restrictions on advertising. I want a separate one on the comprehensive approach minus the ban on advertising, because to me restrict- ions and ban are something different. BY MR. BAKER: To the extent that the documents exist and to the exist that they're not covered by Confidence, we'll make them available to you. BY MR. POTTER: That's fine. BY MR. BAKER: And again, if we discover that documents exist over which a ~onfidence is claimed under 36.3 we will equally advise you of that fact without giving you details of the document itself. BY MR. POTTER: Fine. BY MR. BAKER: We'll deal with it "en temps et lieu". BY MR. POTTER: Thank you. And let's make this one then ITL-12, is it?

434 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 3O 40 Q. Now, before coming forward in the chronology, Mr. Collishaw, closer to today, I notice from this document that we've just looked at, ITL-12, the April document in which the C.T.M.C.'s Voluntary Advertising Code was being discussed, there are clear exchanges between the C.T.MoC. and you and your colleagues, are there not? A. Between the C.T.M.C. and my colleagues. I wasn't involved in the ... Q. What I'm trying to get at is you're aware that the C.T.M.C. and your Department and your colleagues and Health and Welfare are in regular communication. A. Yes. Q. And there have been from time to time from Health and Welfare to the C.T.M.C. various suggestions and requests as to what should go in the Code and how the tobacco manufacturers should behave. Is that not correct? A. There have been various discussions of what would go in the Code, yes. Q. I'd now like to go a little bit into the past only to be able to make this point about 1986. There was a letter discussed, I believe it was yesterday; it's a De- cember 20, 1983 letter to a Dr. Cleaver Keenan and it's at page 3622, and the entire document goes on to 3627, and this is another letter, I believe, Mr. Collishaw -- you can confirm for us -- in a series of letters, of exchanges, between the Minister, whoever he or she may be at the time, and various citiziens who write in with comments or requests. A. Yes. Q. Do you confirm that? A. Yes. Q. And we can see what appears, strictly in rela- tion to all the other documents we've discussed, a likely stock paragraph, the one at the very bottom ... A. Yes. Q .... regarding Norway and Finland that that doesn't work. I'm not going to spend time on that except to ask you to confirm the same things about this paragraph as about all the others. BY MR. BAKER: Well, before Mr. Collishaw does that, Mr. Potter, let's be clear about somethings. Mr. Collishaw testified yesterday because he was shown a document which contained

435 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 40 a variety of stock answers or options, as it were, for some- body to be signing, generally a Minister, and he was asked ... he was shown a number of letters and asked if this is consistent with the way things are done in the Government, that people draft letters and they put options in and would this be one of those letters possibly, and the answer was yes. But I think it improper to try and make the case that any letter, which this man did not sign, that happens to be found in the basement of the Department of Health signed by, appearing to be signed by a Minister in 1983, where it deals with Norway and Finland, contained a stock answer. It's as though to say that Monique B4gin or any other Minister wasn't capable of sitting down and drafting a letter to a citizen. So with the caveat in mind that it's pure specula- tion on the witness's part in respect of his letter or any other specific letter to which he was not the recipient or the writer, let him answer the question. If you want him to speculate, he'll speculate, but that's all he's doing. BY MR. POTTER: Thank you, Mr. Baker. Q. The reason I'm going back to this letter and not dwelling too much on this paragraph about Norway and Finland, because, of course, we've seen that in so many other lettters, is I'm interested in this paragraph here, the penultimate paragraph on page 3623. And in the last line was read: "Currently, the industry is making good progress in reducing the level of tar and carbon monoxide towards an agreed-upon target of twelve (12) milligrams for each by the end of 1984." And in my copy, Mr. Collishaw, I've underlined the word "agreed" A. Yes.

436 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 4O Q. Can you confirm to us, Mr. Collishaw, that Health and Welfare asked for and obtained the agreement of what the Minister refers to as "the industry" to reduce tar and carbon monoxide levels? A. Yes, there was an agreement around reduction. Q. And are you aware, Mr. Collishaw, whether the agreement went further? Was the agreement not also that there should be reduction of these levels but also that there should be encouragement to consumers to switch to the lower levels? A. I don't recall that part of the agreement. The agreement was originally struck before I started working with the Bureau of Tobacco Control and Biometrics. Q. But didn't your duties include monitoring whether the agreement was honored in succeeding years? A. Yes. Q. And did you not in fact note that Canadian consumers of tobacco products did indeed switch to cigarettes having lower tar and carbon monoxide? A. I noted that. I also noted that there were substantial reformulations of cigarettes so that cigarettes with the same brand had the levels of tar and particularly carbon monoxide of cigarettes were reduced in the manu- facturing process. Q. I see. Just to understand, I think what you're saying is that you noticed that some smokers stuck with their brands but the brands levels of tar and carbon monoxide were reduced by the industry? A. Yes. Q. And other consumers actually switched from one brand to another having lower levels of those elements. Yes. And you noticed this in your monitoring of the market. A. Q. Yes. And in your monitoring of the market, Mr. Colli- shaw, did you not notice that the consumers who stuck with their brand, the carbon monoxide and tar levels of which were reduced, were encouraged to do so by advertising? BY MR. BAKER: Could you repeat that question please?

437 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 40 BY THE COURT REPORTER: "Q And in your monitoring of the market, Mr. Collishaw, did you not notice that the consumers who stuck with their brand, the carbon monoxide and tar levels of which were reduced, were encouraged to do so by advertising?" BY MR. BAKER: I object to the question as formulated. It is, I believe, open to Mr. Potter to ask Mr. Collishaw in his capacity as the head of the Unit what the monitoring process of habits of Canadian consumers disclosed over a period of time, but to ask him his opinion as to whether they were induced to use cigarettes of a lower tar and carbon monoxide composition as a consequence of advertising calls for an opinion of Mr. Collishaw and, as I've said many times, I don't believe that you're entitled to ask him his opinions on such matters. BY MR. POTTER: Well, without agreeing with your objection, I stated at the outset yesterday that I would try and stay within the confines of your objections to any questions asking for opinions, and that is why I was careful not to use the word "induce" I was careful to use the word "encouraged". Q. Now, Mr. Collishaw, you monitor not only trends in consumption but do you not also monitor what's happening, or did you not, while it was going on monitor what was going on in the advertising of cigarettes? A. Monitored to a limited extent. Q. And were you not through that monitoring able to see that what Monique B4gin refers to as "the industry" -- I take it it's crystal clear to everybody that that is the industry of tobacco manufacturers -- that they in fact used advertising to encourage? Whether the consumers were induced or not is perhaps a matter of opinion, which your Counsel finds you unqualified to deal with. But did you not in fact see that the advertising was used to give encoura- gement to smokers to stick with brands to tar levels of

438 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 30 40 which were reduced, or to switch to others which had lower tar content? BY MR. BAKER: This man has absolutely no competence to comment on advertising of an industry. He's not an advertising executive, he's not an advertising analyst, he's not been qualified as such, as his opinions as to what the ads did or didn't do in terms of enticement or encouragement to smoke reduced tar contented cigarettes is completely irrele- vant and I will instruct the witness not to answer that question, Mr. Potter. BY MR. POTTER: All right. We'll file that Exhibit as ITL-13. Q. We're back in 1986, Mr. Collishaw. We're back right after the April document that you saw and which was ITL-12, and that was April 7, 1986, the document which raised and which confirmed that there was discussion of a lot of policy alternatives regarding tobacco advertising. And I now put you in May of 1986 and put before you pages from the Hansard for the House of Commons, May 26, 1986, Hansard page 13623, and I draw your attention to a question put by Miss Lynn McDonald, and she ends up saying after a series of questions to which The Honorable Mr. Speaker should surely have objected because it was an accumulation of questions, she says: "Why does he not deliver the real blow in favor of the health of Canadians, especially of children, and ban tobacco advertising all together?" And turning the page, we see that your Minister replied, very calmly and assuredly: "I am saying to her very directly that if she is an expert in this field at all and if she has looked at the effect that the banning of advertising has on reducing the

439 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 4O number of smokers, then she will know that it is painfully few. There are other steps which one has to take. It might be good visuals, and she often deals with visuals rather than actualities. I deal with realities." BY MR. BAKER: Now that you have made a speech, do I assume, dare to assume that you might have a question or has your mission been accomplished, Mr. Potter? BY MR. POTTER: Mission not accomplished just yet, Mr. Baker. I'll now ask my question. Q. Now, Mr. Collishaw, were you involved in making sure the Minister was prepared to deal with a question whether or not advertising should be banned? BY MR. BAKER: In 1986? BY MR. POTTER: Yes. A. In this precise instance? Q. In 1986 were you involved in preparing the Minister to make sure that he was able to deal with a question relating to the prospect of banning advertising? BY MR. BAKER: When you say "a" question, I presume in fairness to the witness, Mr. Potter, you're referring to the question that was put by Ms. McDonald to Mr. Epp? BY MR. POTTER: OUS . Well, no. In fairness, Mr. Baker, that's preposter- Mr. Collishaw obviously wasn't in the House of Commons

44O NEIL E. COLLISHAW (for the Applicant)Examination by Me Potter & Argument i0 20 30 4O having the question come to him. Mr. Epp obviously was prepared either by himself or by other people to deal with that question should it come up. BY MR. BAKER: That question - yes, that's what I'm referring to. BY MR. POTTER: Whether it came from his particular person or in that particular forum or not, someone prepared it, either himself or someone else. BY MR. BAKER: Yes. BY MR. POTTER: And I'm asking Mr. Collishaw whether he was involved in preparing the Minister on that question of what Mr. Epp refers to as "realities" A. I may well have had a hand in preparing briefing notes on the request of the Minister or other senior officials of the Department dealing with this question in 1986. Q. And Mr. Collishaw, when ... First of all, did you know in May or early June of 1986 that Mr. Epp had said this to Parliament? A. Yes. Q. And when you learned that he had said this, were you surprises? BY MR. BAKER: Is his surprise or his reaction to the speech of a Minister of any particular relevance, Mr. Potter? BY MR. POTTER: Well, absolutely.

441 NEIL E. COLLISHAW (for the Applicant) Argument & Examination by Me Potter !0 2O 3O 4O BY MR. BAKER: Why? BY MR. POTTER: Is Mr. Epp saying what his Department has told him to say and has advised him to say or is he saying some- thing completely different? BY MR. BAKER: Well, it might be open to you to ask the question if they had other information that was inconsistent with what you have just referred to, but ... BY MR. POTTER: Well, that's fine ... BY MR. BAKER: ... but in respect of his own personal reaction or his surprise? BY MR. POTTER: Q. Were you in possession, Mr. Epp, of evidence which ... A. I'm not Mr. Epp. Q. I beg your pardon, you're certainly not. That's right. Mr. Collishaw, were you in possession in May or early June of 1986 of any evidence which would contradict your Minister? A. There is some evidence around about reductions in the numbers of smokers following advertising bans. It's hard to know what Mr. Epp meant by "painfully few", so it's hard for me to answer the question. Q. Well, you remember similar questions yesterday, Mr. Collishaw, when you said "Yes, well we did have some things in the file but ..." A. Well, this pertains to ... he's talking about reducing the number of smokers and he says "The reductions in the numbers of smokers is painfully few." Well, you

442 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 30 40 know, there is some suggestive evidence -- I believe we were looking at a document that referred to some of it yester- day -- that there were reductions in the numbers of smokers following bans in advertising in various countries. Now, it's difficult for me to know what Mr. Epp meant by " painfully few". BY MR. BAKER: Don't speculate, Mr. Colloshaw. BY MR. POTTER: Q. Going back in chronology, Mr. Collishaw, there may be other documents, but the last one which we have seen here in your Examination so far which deals with the question is November of 1984, and it is Exhibit RJR-5. It is the letter to Mr. Wiebe ,andthat letter, November of 1984, from the Minister, the same Minister, says: "A total ban on advertising may have some intuitive appeal. Unfortunately, it has had little effect on tobacco sales in countries where it has been tried." A. Yes. Q. Okay? Now, we've already gone over a succession of letters like this ... A. Yes. Q .... and I've asked you the same question: Were you possession or was your Department in possession of evi- dence which would have contradicted this? A. Yes. Q. Your answers were uniformly "Well, we had some statements from people that disagreed with this but the evidence confirmed this statement." Ao Yes. Q. Which evidence did you obtain between November 19, 1984 and May 26, 1986 which would contradict the state- ment made in the November 19, 1984 letter, RJR-5? A. I don't recall receiving any evidence that would have contradicted it. Q. Thank you.

443 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 40 A. I would point out, however, that that letter refers to tobacco sales. Mr. Epp referred to reductions in the numbers of smokers. Q. And is the distinction important to you? A. There is certainly some encouraging evidence that there were reductions in the prevalence of smoking or in the percentage of smokers among young persons in Norway and other countries following a ban on advertising. Q. And is on that that we would have the specula- tion whether it is "painfully few" or not? BY MR. BAKER: In fairness to the record and in fairness to the witness, Mr. Potter, what possible use would it really be to have him guess at what Mr. Epp meant on the 26th of May 1986? BY MR. POTTER: That"s not what I'm asking, Mr. Baker. I want to know whether what Mr. Collishaw has just mentioned, as some evidence regarding something is not regarding consumption of tobacco but regarding number of smokers, the words used by Mr. Epp and which Mr. Collishaw has been careful to under- line. I want to know whether what Mr. Collishaw has just said is in relation only to number of smokers and not in relation to consumption. That's all I'm asking. BY MR. BAKER: That's all? BY MR. POTTER: Is that it? A. Yes. Q. I'm in the same document, Mr. Collishaw, but I should draw your attention to the fact that we've changed Hansards. We're now no longer in May, we're in June 5 of 1986 and we're at Hansard, page 14039, and I'm looking at a presentation by Madame Gabrielle Bertrand who is Parlia- mentary Secretary to your Minister, and she reports to

444 NEIL E. COLLISHAW (for the Applicant) Argument i0 2O 3O 4O Parliament in the second paragraph that in her and the Mi- nister's opinion self-regulation of advertising must be reconsidered. Can we agree, Mr. Collishaw, that this is a reference to the Voluntary Code which we mentioned some time ago? BY MR. BAKER: Hold on just a moment. You are asking the witness to interpret for you for clarity what Gabrielle Bertrand meant? BY MR. POTTER: Well, the fact is ... BY MR. BAKER: Is that what you're asking? BY MR. POTTER: I'm not giving another reading of this, I don't need it, the document makes it crystal clear exactly what it is talking about. Q. And she reports at the bottom paragraph: "This is why the Department of National Health and Welfare has granted to the tobacco industry an extension up to the end of June to allow them to submit a plan aimed at regulating its publicity and the promotion of tobacco. If the industry does not come up with an adequate project for solving the immediate and most important problems of publicity and promotion of tobacco, then the Government will clearly have no other choice but to consider possible legislative controls."

445 NEIL E. COLLISHAW (for the Applicant) Argument & Examination by Me Potter i0 2O 3O 4O As of this date, Mr. Collishaw, had your Depart- ment recommended an advertising ban? BY MR. BAKER: Before the witness answers the question, Mr. Potter, I cannot -- I do so with reluctance I assure you -- fail to point out that you have put a question to the witness in connection with two paragraphs of the Commons Debates, page 14039, and you began with pointing out the third para- graph from the bottom in the right hand column and then you jumped to the last paragraph which begins "This is the reason why" If the matter went no further one would assume that "This is the reason why" refers to the paragraph third from the bottom that you read. You failed, however, to read the paragraph inbetween the two paragraphs to which I've just made reference, which says: "The Voluntary Code now in effect has been violated in many cases and on many occasions" Now, perhaps you'd like to reformulate it or re-put the question to the witness. I think it might be fair . BY MR. POTTER: I won't reformulate, but I will admit that your point is well taken, Mr. Baker, My only question is: Q. As of this date when there was a report to Parliament that the Government will, if the industry fails to come up with acceptable proposals, will clearly have no other choice but to consider possible legislated controls, had your Department recommended an ad ban? A. The Minister would receive recommendations about policy directly from the Deputy Minister in the normal course of events, and I do not know what transpired at that level of discourse in the Department. I know that at that point the Tobacco Products Unit had made no such recommenda- tion. Q. And in fact as of that date had the Tobacco Products Unit made a recommendation of legislative con- trols?

446 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter !0 2O 3O 40 A. I don't believe we'd made any particular re- commendations. We may well have put forward various policy options. Q. Turning the page, and in order not to jump over paragraphs let's do the first one even though there are no questions on it. There's a discussion of the need for changing what is considered to be "weak-hearted warnings" on paragraphs. BY MR. BAKER: Where are you pointing to, Mr. Potter? BY MR. POTTER: Well, it's the first paragraph, as I've stated. And now we come to the second paragraph at which it is report- ed to Parliament that: "... second, the Minister wants a restriction on lifestyle advertising. Advertisements and promotions linking smoking to health, sports and an exciting, attractive lifestyle are totally misleading. We are extremely concerned with the impact of that kind of publicity, especially on young people." Q. Now, first of all, Mr. Collishaw, as of this date, June of 1986, had your Department made any recommenda- tion of a ban on lifestyle advertising? A. Again, I do not know what recommendations specifically might have been made to the Minister by the Deputy Minister at that point. No such recommendation had been forthcoming from the Tobacco Products Unit. Q. And had the Tobacco Products Unit issued a recommendation of a restriction on lifestyle advertising? A. Again, we had put forward policy options. Q. And did those policy options include either a restriction on lifestyle advertising or a ban on lifestyle advertising?

447 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 3O 4O A. You will recall that from a document we looked at a little earlier there was a discussion of principles of various things that could be done and I believe some restriction or a ban on lifestyle advertising was one of those principles. Q. Yes, that's Exhibit ITL-12. The question is whether you had issued a recommendation. A. And as I indicated, we ... in the Tobacco Products Unit I don't believe there were any particular recommen- dations concerning any of the policy options or principles. Q. All right. Now, within your Department, Mr. Collishaw, I'm going to ask you a few questions about this second sentence. "... advertisements and promotions linking smoking to health, sports and an exciting, attractive lifestyle are totally misleading." Now, let's deal with health first of all. Leaving aside the question whether there exist advertisements or promotions linking smoking to health, had your Unit at that time done any research or studies to determine whether anyone in Canada believed that smoking was linked to health? A. That smoking was linked to health? Sorry, could you repeat the question? I got loast in your preamble. Q. Obviously someone believes, apparently the Minister, according to Madame Gabrielle Bertrand, that there exists advertisements and promotions which link smoking to health. A. Yes. Q. In fact, she goes on to say that: "We are extremely concerned with the impact of that kind of publicity, especially on young people." And I'm trying to find out whether any study was done to find out what that impact is. Was your Unit in the possession of any evidence at all as of June of 1986 indicating that anybody in Canada believed that smoking was linked to health?

448 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 30 40 A. You are not asking about advertisements linking smoking to health, you're asking about studies linking smoking to health. Q. No, I'm asking about the impact. Someone is extremely concerned with the impact of this publicity, and I'm trying to find out whether anybody knows what that impact is, and if anyone should know it would be the Tobacco Pro- ducts Unit, and I'm asking whether your Unit or Health and Welfare, to your knowledge, did anything to find out whether anyone in Canada believed in June of 1986 that smoking was linked to health? A. I'm still unclear on your question. You want to know about studies ... about people's belief on smoking linked to health? Or about advertisements linking smoking to health? Which is it? Q. It's the belief. I'm looking for the impact of this advertising and promotion which creates according to Madame Gabrielle Bertrand extreme concern, and I'm only trying to find out whether there is any evidence whatsoever of anyone in Canada believing, as a result of this advertise- ment or otherwise, that smoking is linked to health. Do you have any evidence of that? As a result of the advertising? No, I said as a result of the advertising or otherwise. A. Q. or otherwise. Do you have any evidence of anyone in Canada believing that smoking is linked to health? A. Yes. My colleagues in the Health Promotion Directorate commissioned a number of studies that examined the question of people's knowledge and beliefs of relation- ship of smoking to health. Q. Well, do you have any evidence that anybody in Canada believes smoking is linked to health? A. Yes. Q. And what is that evidence? A. One example is from these various studies that were commissioned by my colleagues in the Health Promotion Directorate, but there are many other examples too, other studies have been done elsewhere in the world looking at people's beliefs and knowledge about the relationship of smoking to health.

449 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 Q. Well, I would like to see those studies. I'd like to see the result of the study which led your Depart- ment to believe that anybody in Canada believes that smoking was linked to health. A. Again, those documents were made available in my office and they may well have been picked out. If not, they're still in my office. Q. You are correct, Mr. Collishaw, that we do have the results of many polls and opinion surveys. Now, the only thing I can find there is the extent to which Cana- dians believe that smoking is linked to ill health. This clearly ... A. Oh, yes. Q. This clearly is an indication of concern that advertisements and promotions linking smoking to health have an impact on people, leading them to believe that somehow smoking is healthy, and I would like to know whether there is a study like that but we have found none in your docu- ments. BY MR. BAKER: 3O You are suggesting that on your scrutiny of all the documents in the Department of Health and Welfare you have come up absolutely empty-handed with any document which suggests that lifestyle advertising induces a belief in health in one fashion or another. Is that what you're sug- gesting to the witness, Mr. Potter? BY MR. POTTER: Well, induces a belief that smoking is healthy. Q. Do you have any evidence that anybody in Canada believes smoking is healthy? 40 BY MR. BAKER: You know, you're engaging in somehwat of a debate centering, on a word that was used by a member of Parliament on June 5, 1986. I am not now discussing what has been posited to you by Mr. Collishaw or any of the documents of the Department that smoking is in fact healthy. You know, words can be used out of context. So what is it exactly

450 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter I0 2O 3O 40 that you are asking the witness to produce? would show that smoking is good for you? A smoking which BY MR. POTTER: No, that anybody believes this, that smoking is good for you. BY MR. BAKER: You mean on this planet or perhaps in another hemisphere? Hold on for just a moment. BY MR. POTTER: Q. Do you remember the reference yesterday, Mr. Collishaw, to paragraph 12 of your pleading in the RJR case in which it is alleged that it is common knowledge that cigarettes have a negative effect on health? A. Yes. Q. And you confirm that? A. Yes. Q. And do you have any studies showing that any- body in Canada believes otherwise? A. Yes. Q. Believes that cigarette smoking does not have a negative effect on health? A. Yes. Q. And do you have any studies showing that anybody in Canada actually believes that smoking has a positive effect on health? A. I'm not so sure about that proposition, but if we go back to the various surveys that were commissioned by my colleagues, as I recall dimly some of the results from those surveys, there were questions asked such as: Do you believe smoking causes lung cancer, heart disease? - and a variety of other questions like that, and in many cases there would be a fairly high percentage that would respond in the affirmative, sixty (60%) or seventy (70%) or eighty (80%) or ninety percent (90%), depending on the question, but the other twenty (20%), or ten (10%) or twenty percent (20%) would respond to such questions in the negative. Q. Yes, I've seen polling like that from the docu- ments that we obtained, Mr. Collishaw, on questions relating

451 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 4O to specific diseases, usually diseases other than lung cancer. I think you'll agree. But on the general question whether cigarettes are good or bad for health, do you not agree with me that nearly everybody in Canada believes that ciga- rettes are not good for you? BY MR. BAKER: I think it's not open to you to ask the witness his opinion on what everybody in Canada believes. Studies are available in the Department on which we have given under- takings that we'll make good on, Mr. Potter. BY MR. POTTER: Okay. We will let all those studies speak for themselves. So this becomes ITL-14. Q. Mr. Collishaw, we are going back to the C.T.M.C. Voluntary Code and I"m showing you a document dated July 9, 1986. It's actually, I believe, several documents and they span pages 4723 to 4732 under the Attorney General's numbering. It begins with a letter from the Deputy Minister to the Minister, attaching documents regarding proposals to change the C.T.M.C.'s Voluntary Code, and what we have in the final pages, that is to say from 4728 on, is a summary of the C.T.M.C. proposition and in the initial pages, from 4724 to 4727 it's the commentary on the C.T.M.C. proposal. And I see frist of all on the covering page from the Deputy Minister to the Minister, he concludes, basing himself on these documents I think it's fair to say: "... that although the C.T.M.C. has made some small concessions in ideas on how to modify that Code, its proposal clearly do not go far enough. They appear to be intended to provide a basis for negotiations." Now, let's turn the page and go on and this document here is the comments of Policy Planning and Information Branch, dated July 8, 1986, regarding the C.T.M.C.'s proposal. Did you have a hand in preparing this document?

452 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 4O went out? A. Q. I was consulted on its preparation. And did you see it in final form before it I don't recall. Probably not. Were you involved in discussions beyond that consultation on this topic, on the proposal to modify this Code? A. Yes, as part of my duties as a member of the Working Group that existed at that time that we referred to earlier. Q. I see. And in the document, I see in the first paragraph on the final line, "However" because the word however" is there because of steps which are taken to be too small ... "they?, the C.T.M.C. "... appear to have made enough progress in their first submission to allow for further negotiations.? Were you consulted on the advisability of further negotiations? A. I don't recall. Q. And in relation to number 1 under the heading "General", we see that the C.T.M.C. proposed to Health and Welfare a Code which would start from the position that anything is allowed unless specifically prohibited in the Code, whereas the writer of this document ... Do you know who wrote it? A. I'm not sure. Q .... states: "N. H.W... " That's: "... National Health and Welfare"s position as being a new Code should start from the position that no form of tobacco promotion which includes advertising and sponsorship should be allowed except as eprmitted by the Code."

453 NEIL E. COLLISHAW (for the Applicant~ Examination by Me Potter i0 2O 30 40 Can you confirm to us, Mr. Collishaw, that that indeed was the position of National Health and Welfare in July of 19867 A. It was a position ... Certainly it was a position put forward as a possible position by the Policy Planning and Information Group, and it was a position ... BY MR. BAKER: Hold on for a moment. Mr. Potter, you've asked the question whether Mr. Collishaw had a hand in creating this document and if he saw it in its final form before it went out and he said that he did not. You have pointed him to a paragraph in "General", part of paragraph i: "... a new Code should start from a position ..." It's not established what the position was, it's a hypothesis. That's the hypothesis perhaps of the writer, that N.H.W .... a new code should start from. It's not established that that was Departmental policy or only a hypothesis of the writer, but certainly it's inappropriate to ask him to speculate on this document. If you want to ask this witness what the policy, as he knew it, to the extent that it existed in the Department as at July 8, 1986, that's appropriate, but not to speculate on this document itself. BY MR. POTTER: Mr. Baker, I may be mistaken, but I believe that was exactly my question. BY MR. BAKER: Well ... BY MR POTTER: Q. Was it not the position of National Health and Welfare in July of 1986 that advertising should be allow- ed only within specific rules to be provided by a Code?

454 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 40 A. That was put forward as a possible position. I'm unsure at this moment whether it was eventually adopted. Q. No, I'm sorry, as this was drafted was that not the position of National ... whether this was adopted later on, but at that time, while these negotiations were going on with the C.T.M.C., was it the position of National Health and Welfare that whatever the results of those dis- cussions, you were going to ban advertising? Wasn't it not the position that there should be a Code allowing a certain amount of advertising? A. This was put forward, as it says here at the beginning, as a possible Health and Welfare position. Q. Well, can you tell us, Mr. Collishaw, whether it was the position of National Health and Welfare that it was possible to have a Code allowing advertising, or were these negotiations simply a waste of time? A. My involvement at this stage was as a member of this Tobacco Working Group, which is a group of officials from different Branches working on the subject, and one of the tasks that this Group did was to put forward possible positions. I can't be sure what positions the Minister or other senior officials of the Department adopted during the actual negotiations thatwent on with the C.T.M.C. Q. All we do know is that there were these negotia- tions. A. I know there were meetings going on and there were several over a period of months ... Q. I see. A .... with the Minister and senior officials of the Department and representatives of the industry. Q. And if we turn the page on the paragraph numbered 6, we see: "C.T.M.C. proposal advertising in publications oriented to youth would be withdrawn ..." And the writer states the National Health and Wel- fare position: "Print advertising should be permitted in print media aimed at an audience over eighteen years of age on bill- boards and at point of purchase."

455 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 30 4O And do you remember, Mr. Collishaw, being involved in discussions regarding that position? A. As a possible position to be put forward, yes. Q. Were you involved in discussions of other possible positions which should be put forward in these negotia- tions? A. We were involvoed, yes, other positions, although it was of course the Minister who was free to choose whichever course of action he wished to follow. We simply supplied him with a range of things that cou!~ be considered. Q. We'll come back to that but before we do let's go down to number 9 regarding the sponsorship of amateur sport. We see that the C.T.M.C. made the proposal that its members: "... would not engage in the sponsorship of amateur sport, but would retain the right to sponsor other youth events ..." That is to say not amateur sport events - and the C.T.M.C.'s position was that: "... this was already implicit in the current Code and has already been adopted as a federal amateur SPOrt policy. Sponsorship of events aimed at an adult audience should be permitted." Were you involved in the discussion of that posi- tion? A. That suggested position, yes. Q. Now, coming back to these items one by one, Mr. Collishaw, to your knowledge was it ever proposed, deal- ing with item number i, that the position to be advanced by National Health and Welfare in its negotiations with the C.T.M.C. was that there should be no advertising of any kind? A. Sorry, I missed the context in which you want me to answer. Q. Well, you've been careful to say regarding all these things that these were possible positions to be advanced in the context of the negotiations with the C.T.M.C.

456 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter & Argument i0 20 3O 40 Is that not correct? A. Yes. Q. In that same context, I'm using your context, in the context of the negotiations with the C.T.M.C., were you aware of discussions that, as regards this point number 1 here, the position of the National Health and Welfare in the negotiations with C.T.M.C. shculd be that there should be no advertising whatsoever? A. I don't recall that being discussed by our Tobacco Working Group as a realistic alternative in the context of those negotiations. Q. And coming to point number 6, was there a dis- cussion of advancing in these negotiations the permitted ... sorry, of advancing the position that there should be no print advertising allowed? A. No print advertising at all. Q. Yes. Whether to adults or anybody. BY MR. BAKER: Anybody? BY MR. POTTER: Q. Here you're suggesting limiting the print ad- vertising to people who are over eighteen. Was there dis- cussion of advancing in these negotiations with the C.T.M.C., Mr. Collishaw, of advancing the position that there should be no print advertising whatsoever? BY MR. BAKER: Mr. Potter, you asked the witness earlier some specific questions and he told you that he did not participate in the negotiations. The document in front of him, which is a note from a Deputy Minister to the Minister, states or delineates the scope of the negotiations, your industry, your client's industry's position and the National Health and Welfare position. You're asking him if anything beyond that was dealt with in the negotiations with the industry, and I think it's unfair to ask him to guess what might have been discussed. He's already said that he wasn't A) privy to this document as it went out, and he wasn't privy to discussions. So how could he possibly know?

457 NEIL E. COLLISHAW (for the Applicant) Argument & Examination by Me Potter i0 2O 30~ 40 BY MR. POTTER: Excuse me, Mr. Baker. BY MR. BAKER: Are you asking him what was discussed within his Department? BY MR. POTTER: Yes. BY MR. BAKER: But that wasn't the form of your last question. BY MR. POTTER: I'm afraid it was, Mr. Baker. I've been very clear because I remember Mr. Collishaw saying he was not involved in the negotiations themselves, and that"s why, because Mr. Collishaw was careful to say these positions here were possible positions advanced in discussions within the Depart- ment, I'm now seeking to find whether he's aware of other discussions or of other possible positions which were advanc- ed as possible elements of National Health and Welfare's negotiating stance, and whether it was discussed in relation to this number 6 here that the Health and Welfare position should be that there should be no print advertising whatsoever. A. I don't recall any discussions on that particular point. Q. And this also relates to billboards, this state- ment, this writer says that the Health and Welfare position in these negotiations was that print advertising should be permitted on billboards. Can you remember discussions regarding the guestionwhether in these negotiations the Health and Welfare position should be that there should be no advertising on billboards? BY Me BAKER: How can he remember discussions in the negotiations when he's told you he wasn't there at the negotiations,

458 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 30 4O Mr. Potter? BY MR. POTTER: Mr. Baker, I've been very clear. BY MR. BAKER: No, you have not been. BY MR. POTTER: I'm not asking him whether this was actually ad- vanced to the C.T.M.C. because I can tell you that it was not. I am asking whether in discussing the formulation of the Health and Welfare position to be advanced at the negotiations, which I accept Mr. Collishaw was not in attend- ance, whether in formulating the position which was put forward if Mr. Collishaw is aware of a discussion of whether that position should be that they should negotiate with the C.T.M.C. a disappearance of billboard advertising. A. I don't recall any such discussion. Q. And the same question regarding point of purchase material, Mr. Collishaw. A. I don't recall any such discussion. Q. And now coming down to 9 where I read the author of this document saying that: "... the Health and Welfare position is or could be or might be sponsorship of events aimed at an adult audience should be permitted." Can you remember discussion of the formulation of a position for these negotiations of something less than that? A. What do you mean by "less"? Q. Well, restricting sponsorship more than allowing it only for adult audiences. A. So by "less" you mean more? Q. Perhaps in your point of view it means more restriction, that is to say less liberty, yes. Can you remember a discussion?

459 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 40 A. Yes, I think we did have some discussions around that point. Q. And can you tell me whether you discussed advanc- ing in these negotiations the position that there should be no sponsorship whatsoever of anykind of event? A. Yes, I think that was discussed. Q. I would not like to ask you, Mr. Collishaw, because I know because your Counsel said so often, that you were not at the negotiations themselves, whether that position was in fact advanced by Health and Welfare. BY MR. BAKER: He has said he's not asking the question, so you need not respond. BY MR. POTTER: So proof will be made of that in another way. BY MR. BAKER: Mr. Potter, you seem to be in a position where you're going to go on for a considerable period of time. There's some anxiety at the table that perhaps we ought to take a recess at this point, so let's break for lunch now. BY MR. POTTER: Okay. So let's just number this document though as ITL-15. PAUSE FOR LUNCH AT 12:15. CONTINUATION AFTER LUNCH AT 1:35 BY MR. POTTER: Q. Okay, Mr. Collishaw, we're moving into July of 1986 and I'd like to show you another letter sent by a Minister of Health and Welfare to a citizen, Keith P. Edwards, dated July 15, 1986, and these documents are

46O NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 3O 40 pages numbered by the Attorney General as 1813 through 1816 and the letter itself is the first two pages of this document. A. Yes. Q. And I draw your attention to the third paragraph, the one beginning "All": "All aspects of tobacco product marketing, including such matters as stronger, more visible health warning, and the possibility of restricting cigarette, advertising, are under active review by officials of my Department. I have asked the Tobacco Manufacturers for their suggestions on how to make their Voluntary Code more effective. Legislation remains an option." My question to you, Mr. Collishaw, is first of all: Do you remember having a hand in drafting this letter? A. Again, not drafting this letter specifically, but generally I was involved in drafting letters. Q. Letters like this one? A. Yes. Q. And a letter like this would have made its way up the ladder of approval before coming under the Mi- nister's pen? A. Yes. Q. And can you say whether as of July 23, 1986 it was still hoped that some kind of conclusion would come out of the negotiations with the C.T.M.C.? BY MR. BAKER: Still hoped by whom? BY MR. POTTER: Q. Did your Department still ... Was your Depart- ment carrying on negotiations with the C.T.M.C.? A. I believe the Minister was carrying on negotia- tions with the C.T.M.C. at that time, yes.

461 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 4O Q. And can you confirm that those negotiations were continuing as of late July 1986? A. Yes, they were. Q. Okay. let's file this then as Exhibit ITL-16. The next letter is addressed to not only a citizen but a secretary. A. A secretary citizen. Q. Yes. It is dated August 15, 1986, Mr. Collishaw, and it is a shorter though similar letter from the Minister and I draw your attention to the third paragraph which also begins "All", and, unless I'm mistaken, I believe that this paragraph is identical to the one in the previous letter. For the record, I might say that this document is at Attorney General's page numbers 2404 through to 2408. A. I don't believe the paragraph is identical. Q. Is it near identical, Mr. Collishaw? BY MR. BAKER: Well, I mean there are some variations of words. Do you want him to get into ... BY MR. POTTER: Q. I mean is it in substance communicating the same message, Mr. Collishaw? A. Well, there's more message in this one. BY MR. BAKER: I will agree with you, Mr. Potter, that it's substantially similar. I'll make that concession myself. I don't want to set a precedent by allowing you to have the witness interpret documents not written by him. BY MR. POTTER: Thank you. Q. Can we say, Mr. Collishaw, the same thing about the August 15 letter as we said about the July 15 leter, that though ...

462 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter I0 20 3O 40 BY MR. BAKER: July 23. BY MR. POTTER: Oh, that's funny, there are two dates on that first letter, just as there are two dates on this one. Anyway. Q. ITL-16 has two dates on it, Mr. Collishaw. Can you tell us on which date the letter was in fact sent? A. It may well have been sent on some other date but normal practice would have it that that date, July 23rd, would correcpond more or less to the date at which it was signed. Q. I see. And this date up here on ITL-16, July 15, 1986, would correspond to what? A. That would have been the day it was received in DCPR, which is Departmental Correspondence and Parlia- mentary Return Section. It would have been in a queue going for signature at a leter time. Q. All right. Well, let's call ITL-16 then a July 23rd letter. And coming to this new document, which is the one addressed to Mr. C. Davidovits, though it has two dates on it, for the same r£ason let's pick August 15 as its date of sending. Can we say the same thing about this one as of the last one, that though you do not remember participating in its drafting it is the kind of document that you help draft and it is the kind of document which went up the ladder of authority before being signed by the Minister? A. Yes. Q. And can we say the same thing in response to the same question, when I draw your attention to the third paragraph of the letter, the one which begins "All" and the one which speaks of the tobacco manufacturers having been asked too make suggestions on the Voluntary Code. Can you confirm that as of August 15, 1986 those discussions were still going on? A. Yes. Q. Let's file that one then as ITL-17. We're going to move into September of 1986, Mr. Collishaw, and I show you a document which begins at "Attorney General 586" and ends at 599. It's entitled "Tobacco Products

463 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 3O 40 Control", a proposal, and the front page shows that it comes from the Tobacco Products Unit. A. Yes. Q. That's your Unit, is it not? A. Yes. Q. Did you draft this document? A. Yes. Q. And am I correct in thinking that this was your proposal for a piece of legislation? A. It was a proposal which I drafted. I would have difficulty characterizing is as mine. Q. I see. Were you told to draft it in this way? A. It was drafted in the context of discussions going on within the Tobacco Products Working Group which I referred to earlier, and it was drafted responding to some ideas that had been raised in that Working Group by other members of the Working Group and some ideas that may have been passed on to them by persons with higher ranks in the Department. Q. All right. Well, let's go to the first page in which you write: "The Government may wish to pass a new Tobacco Products Act." I take it you're offering to the Government a policy option here? A. I'm drafting a policy option which subsequently was discussed in the Tobacco Working Group, Inter-Branch Working Group. Q. Okay. And I draw your attention to paragraph 6 in which you wrote as part of this,perhaps not proposed but possible legislation: "that all tobacco product advertising promotions and sponsorship materials are limited to a picture of the tobacco product or its package and the health information required by Item 7 which follows."

464 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter & Argument i0 2O 30 4O Are you aware, Mr. Collishaw, of any other documents around this time, in September of 1986, which actually went to the step of drafting possible language of legislation which would have gone further than number 6 and actually banned advertising all together? A. I can't specifically recall whether there was one document or another, and on which ... you're asking me about a specific month, September of '86, and I have difficulty knowing what would have been available in that specific month. Q. I take it from your answer that at one time there came a time when someone did actually draft possible wording for an advertising ban. A .... possible wording for an advertising ban? What do you mean by "drafting wording"? Like drafting legis- lation or ...? Q. Well, no, I don't mean that because I know that the legislation itself came much later, in early 1987. But here we have an instance, and in fact it's the first instance that I've come across, it is in September of 1986 when your Department, in fact you yourself, actually take the trouble to draft wording of a possible statute, and I'm wondering whether if by that time anybody in your Depart- ment had taken the trouble to draft possible wording of a statute which would have banned Canadian advertising all together? That was my question and you stated to me that you have trouble because of the month of September. BY MR. BAKER: Would you stop for a moment, Mr. Collishaw. In fairness to what the witness has previously said, Mr. Potter, and I think if we were to bother having the Stenographer read back two responses it would bear witness to what I'm about to suggest to you, that Mr. Collishaw said that he wasn't drafting a statute, he drafted this document for the Working Group and it was not in connection with the drafting of a statute or even a suggested statute to the Government of Canada. That you take the bold type on page 1 which starts after the second line which is described in line 2 as the essence of which would be a statement and characterize that as the drafting of a statute I think is unfair, given what A) appears in the page, and the witness's

465 NEIL E. COLLISHAW (for the Applicant) Argument i0 20 3O 40 previous answer. BY MR. POTTER: Well, I certainly didn't mean to be unfair and that's why I tried to take care to call this possible word- ing of a possible statute. Mr. Collishaw has made it very clear that he wrote this for a particular group, it wasn't actually sitting down and writing legislation, but never- theless it's the first document that I've come across in which anybody, and it turns out to be Mr. Collishaw, has taken the trouble to actually draft wording, whether it's the paragraph of bold print or whether it's the terms of i, 2, 3, 4, 5, 6, and 7 which by this document would have been found probably in regulations rather than in the sta- tute. But it's the first time that anyone sat down to actu- ally draft the wording of a possible legislative provision to be considered by whomever. BY MR. BAKER: Well, no, that's your characterization, that legis- lative provision. The wording that precedes the bold type, that actually says "the essence of which would be a state- ment ..." BY MR. POTTER: " ... worded like this". BY MR. BAKER: Well, either you're right or you're wrong. If you are right and you would like to characterize this as the first draft of a piece of legislation, then that in itself and any discussions surrounding that, it would itself be covered by a confidence under 36.3. You are not entitled to know, if I understand the rules, correctly, Mr. Potter, the various forms of draft legislation that went through. But you know the rules and you know that there are legisla- tive drafters and they don't come out of the Tobacco Control Unit, and this man used what might be possibly the essence of a statement in legislation. Don't characterize it as legislation because A) he didn't have the authority to do

466 NEIL E. COLLISHAW (for the Applicant) Argument i0 2O 3O 4O it, you haven't been told that he was ordered to do it and he certainly never in the past or since has done anything like that before. It's nothing but his own musings. BY MR. POTTER: Well, Mr. Baker ... BY MR. BAKER: Hold on just a moment. BY MR. POTTER: I'm prepared to withdraw the question and start again if you like and maybe simplify things. BY MR. BAKER: I didn't want to interrupt your discussion of this document. Apparently his office has been trying to get him urgently all day. They called back at lunch and couldn't get him. I gather it's urgent. DISCUSSION OFF RECORD BY MR. POTTER: Q. Forget my characterizations of this document, Mr. Collishaw. Please tell us your characterization of this document. What is it you were doing when you wrote this? A. I believe I already did. I was responding to discussions that had taken place earlier in this Working Group I mentioned, and putting pen to paper if you like with some ideas that had been discussed and we, including myself, thought it deserved to have some further examination in the form of a written document. Q. Fine. And those ideas in the form of the written document had to do with what might to into an eventual piece of legislation one day. Is that not correct?

467 NEIL E. COLLISHAW (for the Applicant) Argument & Examination by Me Potter i0 20 3O 4O BY MR. BAKER: Whatever is in that document, certainly the docu- ment speaks for itself. I made the objection several times in the last couple of days, Mr. Potter. You are not entitled, it is our position, to ask the witness to interpret the document for you. The document speaks for itself. If there's clarification because of a word or phrase that you require, that we believe is open to you to ask, but not the broad meaning, the context in which it was written. You're trying to elicit facts from the witness, as I've told you many times, and suggested you're more than entitled to do it, but as an interpreter of this document, I don't believe you have the right to ask. BY MR. POTTER: Once again, I disagree with the objection but we'll live with it for the time being. Q. Mr. Collishaw, before writing this document, did you write any other similar document in which you would have considered a total ban on Canadian advertising rather than the partial ... rather than the restriction which is described on this page? A. When you say "before", how much before? Months? Years? Q. let's say in the year preceding this document. A. I've written an awful lot of stuff and I don't recall ... I might have, but I can't recall specifically. Q. And does it help you if I draw your attention to these first two lines where you write: "The Government may wish to pass a new Tobacco Products Act, the essence of which would be a statement worded like this..." etc., etc." Previous to this did you ever put pen to paper to suggest a statement which would be the essence of a piece of legislation which would provide for a total ban on advert- ising? A. No, it doesn't improve my memory. Q. So you may have and you may not have?

468 NEIL E. COLLISHAW (for the Applicant; Examination by Me Potter & Argument i0 2O 3O 4O A. I might have and I might not have. Q. Could I please ask you to review your records an4 let me know whether you did write a document similar to this in the year preceding September of 1986 in which you would have suggested the content of legislation which would ban advertising in Canada all together. And I would be quite happy if Mr. Baker would like to limit that to documents written internally in your Department or for the Tobacco Products Working Groupwithout the thing having gone to Cabinet. Can you make that undertaking, Mr. Baker? BY MR. BAKER: To see if documents similar to this were ever prepared? BY MR. POTTER: In the year previous to September 1986 and which would have suggested or done or offered or written pro- visions which would have provided for a total ban on Canadian advertising. BY MR. BAKER: Well, provisions ... I must take exception to the expression "which would have provided for a total ban" If you're asking whether he's ever written anything which might have been a policy option in respect of a total ban, that I'm prepared to have him search for. BY MR. POTTER: Look, Mr. Baker, this document is very clear. The first words of the document are: "The Government may wish to pass a new Tobacco Products Act, the essence of which would be a statement worded like this." I'm asking you to undertake to let me know whether in the year leading up to that there was any similar document in which what was ... in the same style, give it the same characteriza- tion, which was leading up to or loking forward to -- call it what you will -- suggesting, recommending, I don't care, but dealing with a total ban rather than a partial ban.

469 NEIL E. COLLISHAW (for the Applicant) Argument i0 2O 30 40 BY MR. BAKER: Depending on the context in which such a document was drafted, if in fact it was drafted, we will have to have a look at it because if it is suggestive, as you your- self have suggested, this particular document in front of you is a form of draft legislation, then I must tell you that 36.3F would preclude its disclosure as a confidence of the Privy Council. That's why I'm having trouble with your characterization, you see, Mr. Potter. You are not entitled to see draft legislation. I don't make the rules, I follow them. They're here if you'd care to examine the Act. BY MR. POTTER: Mr. Baker, I thought a few minutes ago you were adamant in making sure that this was not called draft legis- lation. BY MR. BAKER: My own personal view is that it's not, but your stated view is that it is. BY MR. POTTER: No, my stated view is not that it's draft legis- lation but that it's offering wording which might be consi- dered eventually to go into a draft. I'm looking for a document like that if there is one which contemplates a total ban in the year leading up to September '86. BY MR. BAKER: Contemplates a total ban as a possible policy option? Yes, we'll look for that. We'll look for that. BY MR. POTTER: Thank you.

470 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 4O Q. Now, Mr. Collishaw, was any study done, quanti- tative evaluation or other, comparing the difference in impact on consumption between a total ban and the kind of ban which is mentioned in number 6 of page 1 of this docu- ment? A. There were some discussions around these terms and conditions, and advantages and disadvantages that were discussed. Q. That wasn't my question. This number 6 con- templates -- let's use as vague a word as we can so as not to get into trouble -- but contemplates a restriction on advertising and the restriction would be that the only tobacco advertising allowed would be limited to a picture of the tobacco product or its package and health information. So you would allow advertising but restrict it to that. Was any study done comparing the likely effect of such a restriction to the likely effect of a total ban? A. By? Within the Department? Q. Within your Department. Are you aware of any study or the results of any study or of any evaluation of the likely difference in impact between the restriction on the one hand the outright ban on the other? A. No, there were, as I said, discussions of advan- tages and disadvantages but ... SHORT PAUSE IN ROCEEDINGS BY MR. POTTER: Q. Okay, Mr. Collishaw, we're in the same document and I refer you to page 592 which is entitled "Appendix 2" and just to put you in the context, Appendix 2 is men- tioned at your point ii of your document in which you wrote: "Adherence to these terms and conditions ..." which according to your drafting would have been, and if they ever turn into anything regulatory ... "... will be subject to review by a Board of Arbitration and that Board will have power to impose sanctions on an offending party or parties.

471 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 40 Operating procedures of this Board of Arbitration are described in Appendix 2." Which is at page 592. And on the following page we see the powers of this Board of Arbitration and please correct me if I'm wrong, Mr. Collishaw, but briefly the idea was that a Board made up of various members coming from various places would have the power to determine whether any of the rules had been broken. A. Yes. Q. And am I right in thinking that this idea was born of a dissatisfaction with the idea that the C.T.M.C. should decide itself whether its own members were living up to or not living up to the rules of the C.T.M.C.'s Voluntary Code? A. No, I don't think that was the origin of the creation of this document. Q. And what was the origin? A. Again, it was as I mentioned before, this whole document was prepared in the context of the work of this Tobacco Working Group which existed at the time. Some ideas had been discussed at a meeting of this Group, including the creation of a Board of Arbitration and one of the tasks that the Group assigned to me as a result of that meeting was to put pen to paper on some of these ideas, including what a Board of Arbitration might look like. Q. And in preparing this document, this particular, this number 9 which is on page 593, did you take inspiration from experience in relation to any other products besides tobacco products? A. I recall having some discussions with some of my colleagues elsewhere in the Branch about Voluntary Codes that operate with respect to the advertising of pharma- ceutical products in professional journals. Q. And any other products besides pharmaceuticals? A. Tobacco products. There was at the time a Board of Arbitration existing under the C.T.M.C. Code. Q. Okay. Well, let's file this then as ITL-18. Okay, now this is a document you saw yesterday, Mr. Collishaw, but I don't believe it was produced as an Exhibit. These are your notes for a presentation to the Annual Meeting of the Royal College of Physicians and Surgeons in September of 1986, and thisdocument begins at page 7153 and goes to

472 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 30 40 7170. Do you remember preparing these notes? A. Yes. Q. And I put it to you, Mr. Collishaw, that the notes for this presentation were borrowed very, very extensi- vely from speeches which you had given previously. A. My secret is out! Q. Yes, that's true. In fact, is the content of that speech not borrowed in great measure from the speech which you gave in May of 1984 entitled "Tobacco in Canada" and which has been produced already as Exhibit ITL-9. A. Yes, that's true. Q. And if we go to page 7162 of the document which is in front of you, which is the September 1986 document, towards the bottom we see the discussion of Norway. A. Yes. Q. And it goes on and speaks of Finland, etc. If you like I can refer you to the pages which are in the 1984 speech, Exhibit ITL-9, but will you confirm to me that you are saying essentially the same things in 1986 in September as you had said in May of 1984? BY MR. BAKER: Before the witness eventthinks of responding to thatquestion, Mr. Potter, you know for sure, at least as well as I do, what the rules are in interpreting a document that's on the table as a piece of evidence. If you want to yourself read into the record word by word some para- graphs from speeches which were given two years apart to make the case, the words are very close, approximate or identical, I invite you to do so but all you need to do is file the document and when the time comes to argue it you are going to show that there was a similarity or possibly even an identicality as it were of two speeches spanning a period of twenty-four months. But to ask the witness to assert that the speeches were the same two years apart is to ask him to interpret the documents and it brings nothing to the case, so ... BY MR. POTTER: I agree with you, Mr. Baker. We will simply file the two documents and I will draw my conclusions at the appropriate time.

473 NEIL E. COLLISHAW (for the Applicant)Examination by Me Potter i0 2O Q. For the time being, Mr. Collishaw, will you tell us whether in the two and a third years which followed the May 1984 speech before the September 1986 speech whether you received any evidence to contradict what you said in this speech regarding the experience in Norway and Finland. A. No. Q. And I draw your attention to page 7158, Mr. Collishaw, and the only reason is because of a turn of phrase yesterday which confused me in relation to that ninety-two prcent (92%) figure. Do you remember the ninety-two percent (92%) figure which we discussed yesterday or you discussed with Mr. Irving? And I believe that you said when he asked whether a price rise would bring about a decreasein consumpt- ion, you said "Well, no, it had to do really with an increase in consumption due to a price decrease." I simply draw your atention to pages 5 and 6 of this document and ask you whether or not the ninety-two percent (92%) which you mention in that speech at the bottom of page 5 is not linked to successive price increases and successive consumption declines. A. No. It's linked as it says here: 3O 40 "The long-term trend in Canada up until 1982 was one of declining inflation adjusted prices and increasing consumption." Ninety-two percent (92%) is a measure of variance obtained from a regression analysis done on data for the period beginning in 1950, and I'm not sure exactly when that period ended. It was either '82 or '84. We could confirm that by looking at a document that was previously filed by RJR. Q. I'm glad I brought it up then, Mr. Collishaw, the ninety-two percent (92%) is tied ... is a result of a calculation which you made on an experience which is all before 1982? A. Most of it was before 1982, yes. Or perhaps all of it, I can't remember exactly how long the series went. Q. Okay. And you say in this speech from 1982 to 1985 however, the real price increased by thirty-four percent (34%) and consumption fell by eight point four percent (8.4~).

474 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 3O 4O A. Yes. Q. Now, did consumption not fall equally during 1985? Wasn't 1985 lower than 1984? A. Yes. Q. Wasn't 1986 lower than 1985? A. Yes. Q. And wasn't 1987 lower than 1986? A. Yes. Q. And because of the distinction which we made before between total consumption and number of smokers and realizing that there's another statistic which is referred to from time to time and that's consumption per capita, and then consumption per smoker, can you tell us whether those declines are declines in overall consumption? A. Declines in the sales, the sales of cigarettes and cigarette equivalents or cigarettes made from fine cut tobacco. Q. I see. So the sales of tobacco products in Canada went down in each of those years I"ve just mentioned? A. You mentioned from '85 to '87. Q. In '85 it went down compared to '84. In '86 it went down compared to '85, and in '87 it went down compared to '86. A. That's right. Q. And can you tell me whether consumption per capita went down during those years? A. Yes, it did. Q. And can you tell me whether consumption per smoker went down during those years? A. Yes. Yes, it did. Q. And can you tell me whether ... A. Sorry, I erred on that last answer. Consumption per capita went down in each of those years but for consump- tion per smoker we actually don't have data for every year in that period you mentioned, for the years that ... over the period '84 to '87 however, it would have stayed about the same or perhaps even gone up a little bit. There wasn't very much change in any case. Q. And earlier you referred to something which I think is often called "incidence", that is to say the proportion of people who are smokers, who are regular smokers. Can you tell me what happened to "incidence" during those years?

475 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 3O 4O A. The percentage of smokers declined during those years, although Health and Welfare does not have data for everyone of those years. Q. And can you tell me whether there is an age group of which you are aware in which incidience did not decline? A. My memory is failing me. I'd have to look at the documents to answer that question. Q. Well, Mr. Collishaw, as you sit here today are you aware of any age group or segment in which incidence actually went up during that time? A. I would prefer to look at some documents before I answer that because I'm not sure unless I can look at them. Q. I take it, with the position that you have and the career that you've given yourself, you would like to see consumption and incidence reduced year after year and come to nil eventually? BY MR. BAKER: I object to the question. His opinions are inadmis- sible and certainly irrelevant whether he wants to see con- sumption drop. BY MR. POTTER: Nevertheless. Q. We're getting right to 1987 here, Mr. Collishaw, when legislation came in banning advertising all together. I'm trying to get a view of your mind as the Director of Policy Analysis and Development whether the problem which you saw this legislation as curing was something which was getting more severe over time or less severe, and I want to know whether in your mind there was any group of people in which incidence of smoking was going up, and the message I'm getting from you is that you cannot tell me without looking at the documents. Is that correct? A. That's right. Q. Well, could you please undertake to look and find out and advise whether over those years there was any group of people for which the incidence of smoking was actually going up.

476 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 4O A. Yes. Q. And let's file then as Exhibit ITL-19 ... Mr. Collishaw, I'm now looking at a document dated November 17, 1986, although someone received it on November 18, 1986 - in any event, mid-November 1986. It's signed by Mr. Beavis who is Assistant Deputy Minister. Can you tell me what that is? A. Acting Assistant Deputy Minister. Q. I see. So he's fulfilling the role of Assistant Deputy Minister. In the organigramme is that over you or under you? A. Actually, it's neither. It's sort of off to the side and a bit up to the left. Q. Do you report to him at all? A. No, I don't. Q. No. This memo has to do with speeches for private members Bill C204. You know what Bill C204 is, don't you, Mr. Collishaw? A. Yes, I do. Q. That was another piece of legislation, was it not, introduced by an NDP member? A. Yes, it was. Q. In fact, she's mentioned here in this document - Lynn McDonald - and I put it to you, Mr. Collishaw, that there was considerable discussion in your Department regard- ing Bill C204 after its introduction in Parliament. A. Yes, there was. Q. Did you have a chance to see this memorandum or the revised speeches which are attached to it before they went up to the Legislative Assistant to whom this memorandum is addressed? A. Sorry, you were asking about the memorandum or the speeches? Q. Either. I don't mind much about the memorandum. Did you see the proposed speeches? A. I didn't see the memorandum but certainly I had seen the speeches or drafts of the speeches. Q. And can I say the same thing about these speeches as they reach the Legislative Assistant to whom this memoran- dum is addressed as we said about several of those letters, that by the time they get up there they have gone through a ladder of approvals? A. Yes.

477 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 30 40 Q. And did you yourself approve these speeches before they got up there? A. That I don't recall with reference to these speeches. I know we made, we and the Health Protection Branch, made contributions to all the speeches. We probably had principal responsibility for preparing one or more of them but which I can't remember. Q. Okay. Well, let's deal with the first of those speeches which begins at the Attorney General's page 6765 and it is entitled "Response to Private Members' Bill C204" That's the Socialist legislation, you remember, Mr. Collishaw. It's entitled ... BY MR. BAKER: I beg your pardon? BY MR. POTTER: It's the NDP's legislation. BY MR. BAKER: Oh, I thought you said Socialist legislation. BY MR. POTTER: Yes, that's right. Q .... "Tobacco Advertising and Smoking in Public Places", this speech revised November 14, 1986. I take it when you saw the drafts of this speech you understood that it was intended for use by the Minister? A. No. Q. it was intended for what? A. Speeches that would be given by various Members of Parliament. I think these were speeches to be given by various Members of the Conversative Party in Parliament, not necessarily the Minister. Q. I am at 6769 and I see here at the last para- graph: "Several options to restrict tobacco advertising are being considered and

478 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 40 legislative measures remain a possibility." Do you remember those words? We saw those words in two letters back in July and in August. A. Yes. Q. And this is now mid-November of 1986. A. Yes. Q. Can you confirm in fact that at that time several options to restrict tobacco advertising were being consider- ed? A. Yes. Q. Just for purposes of the record, Mr. Collishaw, I should point out that very similar wording appears in another of these two speeches, at page 6798, and because of the confirmation you've just given, I will not ask a question about that but you may just want to ... Well, someone reading the transcript, instead of finding out on two pages thirty pages apart, it's mentioned in two speeches, might like to see it on one page. And a note at page 6797 - on one of these speeches there is the statement at the bottom that: "Surveys to monitor the rates of tobacco consumption among Canadians are also undertaken by National Health and Welfare." Do you confirm that that is the case? A. Yes. Q. So the information that you give to me in res- ponse to the last undertaking regarding the question of incidence - that would be the result of some of these surveys? A. Yes. Q. And the information you've already given to me regarding the decline in consumption, whether overall or per capita for the several years leading up to 1988, that would also be the result of this monitoring that's mentioned here? A. No.

479 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter I0 20 30 40 BY MR. BAKER: Up to '86 he gave you. BY MR. POTTER: Q. No, I'm sorry. Mr. Collishaw confirmed that there was a decline also in 1987 compared to 1986. Is that not correct, Mr. Collishaw? A. There seem to be several questions ont he table. Which one would you like me to answer? Q. Well, first of all, let's satisfy Mr. Baker about 1987. Did you not confirm that there was a decline in consumption in 1987? A. Yes. BY MR. BAKER: I apologize. I thought he stopped at '86. BY MR. POTTER: Q. And is that information about that decline in consumption the result of these surveys which Health and Welfare undertakes from time to time? A. No. Q. It's a result of what? A. We monitor the sales date that are published monthly by Statistics Canada. Q. So Stats can has information regarding consumpt- ion as a whole and per capita of tobacco products in Canada? A. From two separate sources, yes. There's popu- lation data and there's sales data, so we put them together and get per capita consumption. Q. What I'm getting at is that's what you rely on. Is that right? A. For? Q. Declines in consumption, overall and per capita. A. Yes. Q. Okay. Changing topics just for a second, I see that on page 6794 of this last speech, and I'm drawing your attention to the last half of the bottom paragraph on that page, and if you prefer or the reader of the transcript prefers, the French version of that paragraph

48O NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 40 is at page 6786. I see that there were several discussions with officials of Provinces and Territories. Is that correct? A. Yes. Q. And you confirmed yesterday that those discus- sions began in earnest, I believe, at the latest early 1986. A. Yes. Q. And I see written in this speech, the last sentence: "The implementation of the program was indicative of a new willingness on the part of the Government to work together ont he tobacco issue." You were yourself involved in those discussions, were you not, Mr. Collishaw? A. Yes. There is an ongoing committee now comprised of federal and provincial officials as well as officials of some of the National Health agencies, and I serve as a resource person to that committee. I am not, however, a voting member of the committee. Q. I see. And are you in a position to confirm the correctness of this statement which was put in a speech for use by various Progressive Conservative Members of Parlia- ment that: "This apparently ..." "This", the launching of a program to address the smoking problem. "... this is a stated priority health issue of all the Provinces and Territories. The implementation of the program was indicative of a new willingness on the part of all Governments to work together on the tobacco issue." I'm not asking you, Mr. Collishaw, whether you agree that the willingness is new. I'm after the word "all" Is there a Province or a Territory that you're aware of which indicated a reluctance to work together with the Federal Government?

481 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 A. No. Q. Well, let's file this document then as ITL-20. We're getting to three o'clock, Mr. Collishaw. I'd just as soon you'd catch your train. BY Me THIBAUDAU: We have various undertakings made for Imperial in this Discovery and I would like to make those requests ours and ask you to make the same undertakings to us. BY MR. BAKER: Whatever information and/or documents come from the undertakings made in the course of this Examination, which narrowly was held on behalf of Imperial, will be given as well to the Counsel of RJR MacDonald and will go into the RJR MacDonald file. BY MR. THIBAUDAU: 30 Thank you. AND FURTHER DEPONENT SAITH NAUGHT ADJOURNMENT AT 2:55 ANN M. LLOYD Official Court Reporter 4O

482 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 April 26th, 1989 (A.M.) APPEARANCES: SIMON POTTER ESQ. Attorney for Applicant ROGER E. BAKER, ESQ., QC. MS. ANNE-MARIE WILLIAMS MS. PASCALE LAGACE Attorneys for Respondent GEORGES THIBAUDEAU, ESQ. Counsel for Applicant 2O 3O 40 (EXAMINATION FOR DISCOVERY AFTER CONTESTATION OF NEIL E. COLLISHAW) HAD APPEARED: MR. NEIL E. COLLISHAW NEIL COLLISHAW 42 years of age, Public Servant 134 Caroline Avenue Ottawa, Ontario DULY SWORN EXAMINATION BY MR. SIMON POTTER ATTORNEY FOR APPLICANT: Q. Mr. Collishaw, you will remember that over the past couple of volumes of transcript I've been going over a chronological review of documents leading up to the presentation of this legislation, Bill C-51, in Parliament, and just to put you in the context as to where we had reached, you'll remember that we last discussed a November 17, 1986 memorandum to which were attached several speeches in relation to Bill C-204. A. Yes.

483 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter I0 20 30 4O Q. And that document was produced as Exhibit ITL-20. A. yes. Q. So all I'm doing, Mr. Collishaw, is moving ahead in time, and I show you a document which is dated, on the second page, September 17, 1986. It bears page numbers 1811 and 1812 and it's entitled "Briefing Note" and comes from something called The Policy Planning and Information Branch. Is that related to you? A. It's a branch of the Department of National Health and Welfare, not one where I work, however. Q. I see. Have you seen this document before? A. I don't recall seeing it. Q. This document is dated mid-September 1986. Do you know when Bill C-204 was introduced into Parliament? Was it before this? A. It was around that time. I can't be sure of the date. Q. I draw your attention to the bottom paragraph on page 1811 of this document, and there's a reference there to great concern on the part of someone: "I am very concerned about the lack of success with the current C.T.M.C. Code on tobacco advertising and promotion. Accordingly, I have requested and received proposals from the council on how the Code could be strengthened. At this stage my officials are examining these proposals with a view to restricting unacceptable tobacco marketing practices, including lifestyle advertising. Legislative measures restricting tobacco advertising and promotion remain a possibility." You'll remember, Mr. Collishaw, the last time we met that we spoke about those ongoing discussions and nego- tiations to amend the C.T.M.C.'s Voluntary Code. Ao Yes. Q. Can you confirm to us that as of, in the middle of September those negotiations were still going on? A. Yes.

484 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter I0 20 3O 40 Q. Now, there's a reference here to "unacceptable tobacco marketing practices including lifestyle advertising" Are you aware of a discussion within your Department of particular marketing practices which were considered un- acceptable? A. There were many discussions about that, yes. Q. And can you confirm that there ... Well, for example you - did you have a view as to particular practices which were unacceptable? BY MR. BAKER: I rather think that Mr. Collishaw's personal views are not particularly helpful, Mr. Potter. BY MR. POTTER: Well, whether they are or not, Mr. Baker, I have forgotten my promise to try to live within your over-restric- tive guidelines and I will reformulate my question so as to live within them. Q. Are you aware of any document making a list of the tobacco marketing practices which were unacceptable? A. I am aware of documents produced by the Non- Smokers' Rights Association that indicated there were a number of unacceptable marketing practices of the tobacco companies. I am also aware of documents produced by the Canadian Tobacco Manufacturers Council and the ... I forget the name of it - the Canadian Advertising Standards Council, I believe, that would call into question tobacco marketing practices. Q. I understand that your Department must have received things from outside, but here it is clear that officiels, that is to say civil servants such as yourself, were examining proposals with a view to restrict tobacco marketing practices which are characterized in this document as unacceptable. There must be within your Department a listing or a description or something referring to the parti- cular practices which were unacceptable. A. As I said, there were many discussions of this and I guess different people in the Department expressed different views, and at various times the Minister expressed views about what was unacceptable, publicly.

485 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 30 4O Q. Well, here is a document which tells us that lifestyle advertising would be among the practices which were "unacceptable" Can you remember any other marketing practices which were "unacceptable"? A. Well, the documents produced by the Non-Smokers' Rights Association, many of them indicated that all tobacco marketing practices were unacceptable. Q. Yes. Well, that's not much of a surprise, but here we see that officials -- officials, I take it this is civil servants -- are looking at "unacceptable marketing practices" A. Yes. Q. But would I be correct in saying, Mr. Colli- shaw, that everything that the Non-Smokers' Rights Associa- tion was not swallowed bolus-bolus every time they say it? A. That is correct. Q. So there must have been some list -- I'm trying to avoid the word "view" or "opinion" -- or you must have had in mind marketing practices which were "unacceptable" whether or not the Non-Smokers' Rights Association said they were, and here we have a document saying that lifestyle was one of those. Do you remember other practices which were "unacceptable"? A. Well, what's acceptable and what's not acceptable in this context -- the context is suggested responses for the Minister, should he be asked questions about this matter -- and these would be things that would be viewed as unaccept- able by the Minister. Now, the Minister's views evolved over a period of time as to what was acceptable and what was not acceptable, and I think the views of the Minister are best reflected in the legislation that was eventually passed by Parliament. Q. Well, as you say, those views evolved over time, and though Mr. Baker does not want to get into a discus- sion of views, perhaps he will think the next question, this question is a fair way to summarize the thing: At this point, in September of 1986, was it not considered within your Department, and let's include the Minister in that, that there were some practices which were acceptable and others which were not, and then later on the Minister's evolving view was that there were no practices which would be acceptable?

486 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter BY MR. BAKER: I'll ask you to qualify the question somewhat, Mr. Potter, because I don't know the appropriateness of asking Mr. Collishaw to characterize the Minister's views. I0 BY MR. POTTER: You can see what I'm getting at though, Mr. Baker, and I think ... BY MR. BAKER: 2O 30 There was a discussion within the Department that was ongoing in respect of what the tobacco manufacturers in Canada were doing. That is clear. There are documents that you have already tabled and to which you have access to make it equally clear that there was ... over a period of time ... But to ask this witness to try and characterize Mr. Epp's views int he Fall of '86 does an injustice to the Minister perhaps and is an unfair question to the wit- ness. We're not trying to hide what it is you're seeking. I think that there was an ongoing discussion and some people surely in the Department thought that there were some pract- ices that were more dangerous or more opprobrious or less acceptable than others. That I think you know and we don't hide from the fact that there was clearly a negotiation going on and discussions in that area. I'm not testifying because I am not the witness, but in the context of what I just said, feel free to put a question. BY MR. POTTER: 4O Q. Well, in the context of those discussions, and indeed negotiations with the C.T.M.C., Mr. Collishaw, was it not accepted within your Department that there were some practices which were acceptable? A. Our job in the public service was to respond to the Minister's requests and to help him in formulating policy. Now, at this particular stage, all I can say with certainty is that the Minister was considering various options, and what he might have considered acceptable and unacceptable on September 17, 1986 it's very difficult for me to say with certainty.

487 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 30 40 Q. But were these negotiations with the C.T.M.C. proceeding on the assumption within your Department that no practices were acceptable? A. I don't think there were any assumptions being made about which would be acceptable and which would not be acceptable. At this point various options were being considered. Q. Okay. Can we produce then this September 17, 1986 briefing note, signed by Policy Planning and Information Branch, as Exhibit ITL-21. Mr. Collishaw, we are coming into ... I'm sorry, before we get to January, I'd like to deal with December, and you've already been shown, and it has become Exhibit RJR-4 in the RJR Discovery, and it is your briefing for the Minister on December 18, 1986. Do you remember that document? A. yes. Q. You remember this document, don't you? A. Yes, I do. Q. And it became RJR-4 in the transcript of April 12, 1989. And I don't want to ask you questions that have already been asked by Mr. Irving, I believe, on that document. When you wrote this document on December 18, 1986, I take it that Bill C-204 had already been introduced. A. Yes, it had. Q. Do you remember how long previously? A. Well, as I said earlier, I didn't recall the exact date, but I see a reference here to the date of October 6, 1986. Q. And I see in "Recommended Response" on Exhibit RJR-4 that you suggest to the Minister that he might wish to respond to a question regarding a total ban, that it would seriously risk offending the Charter of Rights and Freedoms. I just want to find out when you say that, that was a view you received from someone else I think it's fair to say? A. Yes. Q. And that is the document which was referred to with some debate I remember when Mr. Irving was asking the questions, the document which became Exhibit I-l. BY MR. BAKER: Reserve.

488 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 30 4O BY MR. POTTER: Reserve. Well, no, I-i is the document that the Judge accepted as an Exhibit, rejecting your objection to the admission. I don't want to get onto whether the objection was under reserve or whether it was definite. Q. I just want to ask the question whether this serious risk, having come from someone else as Mr. Collishaw has confirmed, is that letter of which we're talking, the 1985 letter. A. Yes. Q. Okay. And on that question, Mr. Collishaw, since the letter is dated August 13, 1985, as you say in this Exhibit RJR-4, and since RJR-4 is dated December 18, 1986, were there any other sources of information which you used in order to write this paragraph that there was a serious risk? BY MR. BAKER: I will object to that, Mr. Potter. The document, RJR-4, to which you're referring clearly speaks for itself. It uses words and language in the second to last paragraph which refer to something above in the document. As insofar as the document deals with risk to a statute in a Charter attack is concerned, I don't know whose opinions or the source of Mr. Collishaw's concerns are of any value and of any relevance to this Court because in the end, as we both know I think, a Trial Judge and possibly at a later date a series of other Judges in higher Courts will determine whether the Bill is properly attacked under the Charter or not and who wrote what several years ago insofar as the risk of the Bill is concerned, I think it's of absolutely marginal importance and is unacceptable. BY MR. POTTER: Well, I agree with you and that's why I didn't ask that question, and the question I asked I put because I wanted to be fair to the witness to give him, because of the gap in dates between the one document and the other, I wanted to ask whether anything was obtained, any evidence was obtained or any further work was done between August

489 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 3O 4O 13, 1985 and December 18, 1986 in order to come to terms with the concerns which had been expressed in August of 1985. If you don't want the witness to answer, that's fine with me, but I thought it was only fair to put that question to the witness considering the gap in the two dates. BY MR. BAKER: No, I appreciate your attempt at fairness and I say that not tongue in cheek, Mr. Potter, but I would just as soon the witness not respond. BY MR. POTTER: That's fine. Q. You remember the discussion, Mr. Collishaw, about the paragraph in RJR-4 which refers to Mr. Boddewyn and to yourself. A. Yes. Q. In this paragraph, Mr. Collishaw, you state, and this is December of 1986, that: "Market and social science research on international tobacco consumption trends offer no compelling evidence that advertising bans introduced elsewhere reduce consumption of tobacco." You remember, Mr. Collishaw, that we've looked at a series of letters which contain statements similar to that one, the one after the other, letters on which I asked each time the question: Did you have evidence to contra- dict that statement? When you wrote this on December 18, 1986, did you have evidence to contradict this statement? A. No. Q. Let's go forward now and we'll switch into 1987 and I'm showing you a document dated January 5, 1987. It is addressed to Ms. Anna Taylor, signed by yourself, and attached to it is her letter addressed to your Minister asking questions about Bill C-291. And you can see in your response you refer to Bill C-204. Is Bill C-204 the same thing as Bill C-291?

490 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter I0 20 A. I think there were some differences, but I can't recall exactly what they were. Q. It is nevertheless a successor to a Bill which had simply had another number because it was a different session of Parliament. Is that not correct? A. It is a successor to that Bill but, as I said, I think there were some differences between the two versions of the Bill. Q. And were both versions introduced by the same private member? A. Yes, they were. Q. And that private member is a member of the NDP. Is that not correct? A. She was a member of the NDP Caucus at the time. She's no longer a Member of Parliament. Q. She was a Member of the Parliament when Bill C-51 was introduced, was she not? A. Yes. Q. You write in this letter of January 1987, in the third paragraph, that: 30 40 "There is active review of various things including the possibility of restricting cigarette advertising." And you say that: "Discussions with the tobacco manufacturers on ways to strengthen or replace their Voluntary Code have been concluded. Options are now being developed to address this problem." Are you aware of any discussion with the tobacco manufacturers up to January of 1987 in which the officials to whom you refer here required that the Voluntary Code be replaced by a requirement that there be no advertising at all? A. I'm not clear on your question. My puzzlement refers to who is it that's proposing this restriction on advertising?

491 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 30 40 Q. Well, you write here, Mr. Collishaw, quote: "Initial discussions with the tobacco manufacturers on ways to strengthen or replace their Voluntary Code have been concluded." Without asking you the precise date on which they were concluded, we can conclude that those discussions were concluded by January 5, 1987, the date of this letter. A. Yes. Q. And my question to you is: Are you aware of any suggestion during those ~iscussions which had to do, according to this letter, with strengthening or replacing the Voluntary Code of the possibility of replacing what was then in effect with a requirement, whether in a Code or elsewhere, that there be no advertising whatsoever? A. I wasn't present at any of the discussions that took place, so I can't be sure what may or may not have been discussed. Qo But we've already established, Mr. Collishaw, that you were aware of the discussions... A. Yes. Q .... and you were involved in meetings in which these discussions were a subject, and you knew that the discussions were going on and you realize in this letter that they had to do with strengthening or replacing the Voluntary Code. And my question to you is: As part of that knowledge that you had as of January 5, 1987, when the discussions had been concluded, were you aware of any proposal having been given to the manufacturers that instead of strenghtening the Code or replacing the Code with another code, that advertising should simply be done away with all together? Were you aware of that or not? A. Of those proposals being given to manufacturers that they ought to ... Q. That they ought to be prevented from advertis- ing all together. A .... that they ought to give up advertising voluntarily? Q. Well, let's deal with it one at a time. Are you aware of that, that they ought to give ... that there was a suggestion to them that they ought to give up advertis- ing all together, voluntarily?

492 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 3O 40 A. No, I don't know. Q. No. And were you aware as of this time, when the discussions with the manufacturers had been concluded, and when you were looking at various options, were you aware of a suggestion to them that they ought to be forced to give up advertising all together? A. No. Q. Well, let's file this letter then, Mr. Collishaw, a January 5, 1987 letter from yourself to Ms. Anna Taylor, with an attachment, being the November 28, 1986 letter from her to the Honorable Jake Epp, as Exhibit ITL-22. Moving along in 1987, Mr. Collishaw, and I show you a telex, and before going any further with it I want to check the date so that we get the chronology right. I see the date here 05/02/87, but up here it's 05/February/87. This is a telex from you. You confirmed to me that you sent this telex in earlyFebruary of 1987? A. Yes. Q. And this is a telex addressed to Mr. Kimmo Leppo of the University of Helsinki in Finland, and by this telex you asked for various information in relation to the possibility of a total ad ban. Can you explain why you required a reply on an urgent basis? A. I believe at about this time the Minister had made a decision that he wished to go forward with the recom- mendation for a restriction on tobacco advertising that wassubstantially the same as eventually presented in the first reading version of the Bill, and we were seeking fur- ther information about total bans on tobacco advertising. Q. Now, did you send similar requests to other people? A. I don't recall. Q. Now, you say it was about this time that the Minister decided to go forward with recommendations for restrictions similar to what appeared in the-first draft of C-51. When you say "recommendations" do you mean he decided to go forward with his recommendation that it be done, or he ... Is that what you mean? A. Yes. Q. Now, are you aware of recommendations in that sense coming from other people within your Department?

493 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter I0 20 3O 40 BY MR. BAKER: Mr. Potter, you will recall that in the Discoveries of a few weeks ago I made several objections on the basis that it would be inappropriate for the witness to testify as to what was before the Minister and the Cabinet in con- nection with legislation. The question that you've just put to the witness I think violates that principle of law which I then espoused which you may or may not agree with, I don't know, but you're basically asking this witness to tell the Court what it was Mr. Epp had before him by way of recommendation when he was, he and Cabinet were deciding whether to go with a piece of legislation or not. I think that violates 36.3 of the Canada Evidence Act, and I would instruct the witness not to answer the question. BY MR. POTTER: Okay. I think the record already shows that I disagree with your view of the law on that matter, parti- cularly in cases like challenges under the Charter. I think we're entitled to know just what it was that was before Government, but obviously, I have to find out another way. Q. Can you tell us this, Mr. Collishaw: You re- member RJR-4. It's a December 18 document. Between December 18,. 1986 and February 5, 1987, the date of this telex, did you change the information that you gave to the Minister in relation to the evidence which existed on the efficacy of an ad ban? A. Well, again I have difficulty recalling exact dates. The information presented in that document to which you referred, RJR-4, represents part of the information that's available concerning advertising and consumption, and there is other information available as well, and along about this time we presented some of this other information to the Minister but I can't recall whether it was between those exact dates or before or after. Q. Well, you must remember, Mr. Collishaw, whether you were told about the Minister's intention to go forward with his recommendation ... A. Yes. Q .... as you described it. When you were told of that, when you were instructed that the Minister had

494 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 3O 4O come to this conclusion, had you by then changed the briefing that you had given to him on December 18, 1986? You must know whether the Minister's intention was communicated to you before or after you changed that briefing. BY MR. BAKER: ing . You haven't established that he changed the brief- You asked him if he did change the briefing. BY MR. POTTER: Well, let's establish that. Q. Did you ever change the content of that briefing to the Minister? A. I did not change the content of that briefing, but I should also make it clear I do not know whether that briefing ever went to the Minister's office or to the Minister. Q. That's fair. We may have to ask Mr. Epp whether he got that. But you did make that briefing and you made it on December 18, 1986, and you never changed that briefing. Is that correct? A. That's right. Q. So it's fair to say that when you sent this on February 5, 1987 you had not changed that briefing re- garding the efficacy of an ad ban? A. That's right. Q. And thereafter, even until the Bill C-51 was introduced, you did not change that briefing? A. There would be no reason to change a briefing. They have a very short lifespan. Q. Do you say there would be no reason to change the briefing because the decision had been made? A. No, because briefings by their nature are things that are done for an immediate question that may come up, and thereafter they're generally not used again. Q. Well, I fear you may have misunderstood my question then about changing the briefing. My question is not: Did you ever specifically amend the December 18, 1986 briefing, which is RJR-4? My question is: Whether the advice which you were giving by the briefing, whether or not it reached the Minister as regards the efficacy of

495 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 30 40 an ad ban, was that changed by you? Was that advice changed? BY MR. BAKER: I think the question as put is highly unfair to the witness if we recall the questions and answers put to Mr. Collishaw on that document by Mr. Irving. We are now referring to RJR-4 which is a memo of December 1986, is not a statement. The document surely speaks for itself, Mr. Potter. It's not a statement of policy by the Tobacco Branch to the Minister, and that's the essence of the way you're now putting the question to the witness; it was a hypothesis. So why don't you ask him if he again briefed the Minister or changed the hypothesis? But the document, if I could look at the top for a moment, if I'm able to read your handwriting. It says: "Anticipated question. Why does the Minister not ban all tobacco advertising and promotion?" It's in the form of a hypothesis which is a briefing for the Minister. The document doesn't suggest that this was the then-existing government policy, and what you're really asking the witness now: Did he change his own policy between the date of this question and February 1987, and given what document RJR-4 really is, it's not so much that I'm objecting on the basis of it being a trick question because you're entitled to trap the witness if you choose to do so, but it's an unfair characterization of what RJR-4 really is, and therefore if he were to respond to it on the basis of the question, Mr. Potter, the answer would really be incomprehensible. BY MR. POTTER: Well, Mr. Baker, I was very careful to frame my question in terms having nothing to do with policy because I'm not interested in the policy. I know that the policy eventually was there should be an ad ban - that's pretty clear. I was very careful to say that RJR-4, in relation to the efficacy of an ad ban in the paragraph beginning "Market and social science research ..." was, and I used the word "advice" Q. And, Mr. Collishaw, I'm sure you can confirm that this was the advice which you gave to the Minister or which you gave for the Minister's intention on December 18, 1986.

496 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 4O BY MR. BAKER: You're asking the witness to interpret the document which clearly speaks for itself. Surely you don't make ... you're not trying to make the case from the question, Mr. Potter, that this was an advisory to the Minister in respect of what the policy of the Government of Canada or Mr. Epp's policy should be. BY MR. POTTER: I'm very careful to say nothing of the sort, Mr. Baker. This doesn't mention policy, I'm not saying policy, but here is a document, briefing for the Minister, which refers to relevant factors which explains why there should not be an ad ban. BY MR. BAKER: Okay. BY MR. POTTER: And as a relevant factor we see that Mr. Collishaw wrote on December 18, 1986 that there was no compelling evidence that advertising bans reduced consumption of tobacco. Now, if you wanted a word different from "advice", it was anyway a report, it was a communication of information from Mr. Collishaw intended for the Minister, whether the Minister got it or not. And my only question is whether Mr. Collishaw subsequently, before the introduction of Bill C-51, changed or gave any new communication or evidence which would be different from that. That's my question. A. Well, I would like to go back to the structure of this note and similar briefing notes. They start with an anticipated question which is a proposition that may be put to the Minister. The relevant factors cited here are those that are relevant to the question as posed, and the recommended response is the one that's relevant to the question as posed, and I have difficulty with the characteri- zation of that as "advice" in the sense of my views on the matter or a complete and thorough analysis of the problem. It's if the Minister were asked this question, these are the relevant factors, this is the recommended response.

497 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 30 40 Now, later on there were other question-and-answer materials developed in support of questions such as "Why is the Minister banning tobacco advertising?", and there, relevant factors were those that were relevant to providing an answer to that particular question. Now, what use is made of this information is ... those are the policy judgments made by the Minister. Q. Well, Mr. Collishaw, that's exactly why I'm asking you these questions, because I recognize that you're not responsible for the decision as to which policy is the best. But you told the Minister here that there was no compelling evidence that advertising bans reduced consumption of tobacco. Ao Yes. Q. Did you ever tell the Minister that there was compelling evidence that advertising bans reduced consumption? A. I certainly have told the Minister that there is evidence that supports the proposition of banning advertis- ing, and there is. Q. That's not my question. My question is: Did you ever, between December 18, 1986, the date of RJR-4, and the introduction of Bill C-51, did you ever address to the Minister a communication which would contradict what you said here on December 18, 1986, that there is no com- pelling evidence that advertising bans reduce consumption? A. No. Q. Mr. Collishaw, your attorney referred to, you know, it being fair for me to try to trap you. The reason I'm asking you this question is precisely because I know there's a difference between what you see as fact and what policy is eventually decided upon. I want the transcript to be clear as to what that distinction is. DISCUSSION OFF RECORD BY MR. POTTER: Q. Well, let's produce this telex, Mr. Collishaw, your February 5, 1987 telex addressed to Mr. Kimmo Leppo, as Exhibit ITL-23. Okay, we are moving out of February 1987 now, for Collishaw, into March of 1987 and I'm showing you a document which begins at Attorney General 1232 and ends at 1243, and so that you know it's in fact two documents, both of which are date March i0, 1987, both of which come

498 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 30 40 out of Tobacco Products Unit, Health Protection Branch, and both of which are entitled "Response to Bill C-204", but the documents are slightly different, the one to the other. Have you seen these documents before? A. Yes. Q. And did you have a hand in preparing them? A. Yes. Q. You remember on our last day of Examination we saw Exhibit ITL-20 which was a collection of three or four speeches -- I can show it to you if you like -- and your explanation of them was that it was a series of speeches which were prepared in 1986 for use by the Conservative Caucus in response to Bill C-204. Is that correct? A. Yes. Q. Do these documents, which are dated March 1987, fit into the same category? A. Yes, they do. Q. On whose instructions were these prepared? A. It would have been the Parliamentary Liaison Group in our Department. It's an office that's attached to the Minister's office. Q. And do you confirm, Mr. Collishaw, that at this time, as in late 1986, there was considerable discus- sion about Bill C-204 in your Department? A. Yes. Q. Let's file this document then, which is a col- lection of two March i0, 1987 documents entitled "Response to Bill C-204" as Exhibit ITL-24. I'm now showing you, Mr. Collishaw, another document which is dated the same day if you look two pages into it, it's dated March I0, 1987. This collection of pages goes from page 10132 to 10137 and we're looking at a letter or a draft letter ad- ~resed to Ms. Ann MacLennan, Editor of Addiction Research Foundation, The Journal. The letter or draft letter was signed by Byron Rogers, and Analyst of the Tobacco Products Unit, and the first page of this is entitled "A Request for Approval of Publication". Do you happen to know whether this letter was in fact approved and sent? A. It was approved but it was not sent. Q. Do you know why it was approved and then not sent? A. It was reviewed by Dr. Franklin on its scientific merits and he did recommend it as an appropriate document from a scientific point of view. However, subsequently

499 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 4O Byron Rogers and myself decided that we would not forward it to The Journal. Q. And why did you make that decision , Mr. Colli- shaw? What was it that led you to -- I'm trying to find the right words so as not to infuriate Mr. Baker -- but to intervene in the decision whether or not the letter should be sent? A. It wasn't a question of intervention. Mr. Rogers and I discussed it and we mutually agreed that by the time we got around to sending it, there had already been further discussion of this issue in the publication and we just felt it was too late to be appropriate. Q. Whether or not you sent the thing, Mr. Colli- shaw, you confirm that you reviewed the letter ... Yes. ... and were satisfied with the contents of the letter. A. Q. Yes. So that even on March i0, 1987 you were ready to approve the letter, which would have said to a public journal that: "... evidence about the impact of advertising on overall consumption tends to be tantalizingly inconclusive." A. Sorry. Which ...? I'm not sure about the date. This is the date on the draft. Whether that was the date about which we had this discussion and whether it was too late or not, I'm not sure. I rather suspect that date was later than that, but I can't be sure. Q. So on March lOth or later you were happy with the sentence I've just read? A. Yes. Q. And going down to the bottom of page 2 of that letter, having reviewed in a paragraph evidence coming from Norway, you were happy in mid-March 1987 to say it is difficult to draw conclusions from these trends? BY MR. BAKER: Mr. Potter, the state of Mr. Collishaw's happiness I suggest to you is not of special relevance to whoever

5OO NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 4O may be unfortunate enough to read this transcript someday, and equally, in the form of the question as you put it to the witness, you said "You were happy with what you said" as you pointed to the first line in the last paragraph of page 2, and it wasn't Mr. Collishaw who wrote anything in this document, it was Mr. Byron Rogers. Be that as it may, Mr. Potter, this is a document that you have found in the library of the Department of Health, it was a draft, it was never sent, the statement is there. But I put it to you and if we were in front of a Judge I'd be putting it to the Judge that whether Mr. Collishaw was happy with that is clearly irrelevant. The document speaks for itself, quite simply. BY MR. POTTER: That's enough for me. Q. Mr. Collishaw, I'm looking at the paragraph in this letter dealing with Norway and I see that this letter, the content of which you approved, indicated that: "... total tobacco consumption in Nor- way has remained stable at around two kilograms per adult annually for years." Were you yourself in possession of evidence regard- ing total tobacco consumption in Norway? A. Yes. Q. And this expression "for years", can you give us an idea of how many years we're talking about? Ten? Twenty? Thirty? A. Well, in the sence ... around two kilograms, if we take that to mean plus or minus half a kilogram, I believe it would be in the order of thirty (30) years or SO. Q. Mr. Collishaw, I want to be clear about your evidence. Are you saying that it's thirty (30) years if you take it as plus or minus twenty-five percent (25%)? A. Yes. Q. Now, because this letter was prepared by some- one who at one time wanted to send it, it was approved for content but later on it was decided not to send it. I'd like to know, Mr. Collishaw, whether the decision not to

501 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter I0 2O 30 40 send it was related to the fact that there had been a policy decision that there would be an advertising ban and it was therefore not a good idea to come out and say that it was impossible to draw a conclusion from the trends. Is that the reason the letter wasn't sent? A. I already stated that the reason the letter wasn't sent had to do with the timing with respect to the publication of The Journal. By the time we got around to considering whether we were going to send this letter or not, a subsequent issue of The Journal had been published, it bore discussion of the original article by Richard Gilbert, and the main reason was we felt that it wouldn't be appropri- ate to have still more discussion in the pages of this Journal on this issue. However, the factor you mentioned was a consider- ation, although a minor one. The main reason had to do with the date at which we had this in shape to send to The Journal. Q. Well, Mr. Collishaw, let's file this document then, which is a March i0, 1987 collection of pages surround- ing the draft of a letter to be sent to the Addiction Re- search Foundation, as Exhibit ITL-25. Once again, for the reader of the transcript, Mr. Collishaw, and because we're going chronologically, I remind you of a document dated March 19, 1987 which were Speaking Notes on the Legislative Plan for the Proposed Tobacco Products Control Act prepared by or for the Honorable Jake Epp, appearing before the Cabinet Committee on Legislation and House Planning which became Exhibit RJR-9 under the reserve of Mr. Baker's vigorous objection in the transcript of April 12, 1989. And in rela- tion to this document so as to avoid going over ground already covered, I just want to make sure ... first of all, you did have a hand in preparing this document? A. Yes, I did. Q. And on page 1215 of this Exhibit, RJR-9, there's a reference to the Proposed Tobacco Products Control Act. It's clear that we are talking about the same legislation which is in question here? BY MR. BAKER: Mr. Potter, you will recall that the objection that I made on April 12 to a question put by either Mr.

5O2 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 3O 40 Irving or Mr. Cherniak -- I don't recall which of the two of them was putting the question -- it was based on this document appearing to be a document that was a briefing document for Cabinet in respect of legislation. I think it's inappropriate for this witness to testify in any way on the creation, discussion or the movement of this document through various Departments within the Department of Health and Welfare up to the Minister and Cabinet level, and the objection is based on 36.3 of the Canada Zvidence Act and I will instruct the witness not to answer the question. BY MR. POTTER: I take it you are going to object to any question on this document. BY MR. BAKER: I am, Sir. BY MR. POTTER: Q. Moving on to another document then, Mr. Colli- shaw, I'm showing you a document dated March 25, 1987 and in fact it is entitled "Notes for a Statement in the House of Commons by the Honorable Jake Epp", and this is a document which is two pages, both in English and in French - so four pages all together. It goes from 2833 to 2836, and it is Mr. Epp's notes for an announcement that the Government has decided to undertake a comprehensive health-oriented policy including the prohibition of advertising and pro- motion. Did you have a hand in preparing this, Mr. Collishaw? A. Yes, I did. Q. This is dated March 25. Do you know if the statement was actually given on March 25? A. No, it was not. Q. And when was it given? A. I don't think it was ever given. Q. And the reason I'm asking the question is I'd like you to confirm that when the Bill C-51, the Tobacco Products Control Act, was brought in for First Reading in Parliament, there had been no announcement of the intention to do so. A. Oh, yes, there had been such an announcement.

503 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 40 Q. And when was that announcement made? BY MR. BAKER: Are you talking about an announcement in Parliament, Mr. Potter? BY MR. POTTER: I'm talking about an announcement in Parliament. A. I'm sorry, I misunderstood. Q. I'm sorry. Mr. Baker is right to ask the ques- tion. I was not clear and I refer to this as notes for a Statement in the House of Commons. Do you confirm there was no one else in Parliament before the First Reading? BY MR. BAKER: Well, is it for this witness to confirm what was said in Parliament or not? I mean it's not a matter of hiding information, but I mean he's not the scriptwriter of Hansard. BY MR. POTTER: No, that's correct. On the other hand, Mr. Collishaw did have a hand in preparing something which was to have been an announcement in the House of Commons. He was a very highly placed official in the Department handling this very piece of legislation. It was obviously felt at one time that there should be a statement in the House of Commons because this was prepared, and none was ... BY MR. BAKER: Not necessarily. Felt by who? I mean maybe, maybe ... you know, in fairness, Mr. Potter, maybe there's a bunch of people down there who think that they have to draft memos for hypothecial situations. It hasn't been shown that every- thing that was written, drafts for speeches and hypothetical questions and answers even reached the Minister's desk. Perhaps it's part of the function of an astute public service to prepare all kinds of documents of this nature. But it doesn't mean that it ever saw the light of day, that it

504 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter I0 20 30 40 ever hit the Minister's desk, and if it did that it ever got into the public. So, you know, that Mr. Collishaw had been preparing a briefing document that he says, as far as he is concerned, was never made public - so what? It might be interesting, anecdotal, but is it relevant? BY MR POTTER: Q. Are you aware, Mr. Collishaw, of any public announcement made by your Department of the intention to bring in the legislation before the legislation was actually read at First Reading? A. Yes. Q. How much before? A. On April 22nd there was a news conference at which this intention was announced. Q. And when was First Reading? A. April 30, 1987. Q. Well, I don't see any need to produce this, a March 25, 1987 document, as an Exhibit since it was prepar- ed by someone but never went anywhere. It's served anyway to obtain confirmation that the first public announcement of the intention to bring in the ban was April 22. Is that correct? A. That's right. SHORT RECESS FROM 11:20 TO 11:40 BY MR. POTTER: Q. Mr. Collishaw, I'm showing you now another document dated, I think, March 25, as we can see in the date stamp. It's actually three (3) documents which go from page 1565 to 1574 and it begins with a covering memo- randum which refers to the following two documents which are: A one-page memorandum of Speaking Notes for the Mi- nister's Caucus briefing on March 25, as well as an alter- native slightly longer version of Speaking Notes for the same meeting. Have you seen this document before? A. Yes, I have. Q. Did you have a hand in preparing it? A. Yes, I did. Q. And we know that the notes for the Statement in the House of Commons by Mr. Epp, dated March 25, 1987,

5O5 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 40 that statement was not given. Do you happen to know whether this one was given? A. I have no knowledge of that. Q. Do you know why it is that in the covering memorandum there's reference to "transmittal to the Minister as rapidly as possible"? A. I would expect it would be ... BY MR. BAKER: If you know, answer the question. it's inappropriate that you guess. If you don't, BY THE WITNESS: A. It's because the document was prepared close to the date on which it was scheduled to be given. BY MR. POTTER: Q. And looking at the one-page collection of notes for the address to the Conservative Caucus, Mr. Collishaw, I see the expression "We must seize the initiative." Are those your words? A. They were words that I wrote. However, you'll see at the head of the document - this is proposed notes for an address by the Minister. So it's a little hard to know who owns these words. Q. I take it from what you say that you actually wrote this document but, of course, the document was for use by someone else. A. Yes. Q. And were you told, Mr. Collishaw, that it was important that the initiative be seized? A. Yes, but perhaps not in those words specific- ally. this? Q. Do you remember in what words you were told A. No, I do not. Q. And by whom were you told this? A. I don't recall specifically. Normally it would be instruction that would come to me through the hierarchy of government organization of which we have often spoken.

5O6 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter & Argument i0 20 3O 40 Q. And would it have come from that liaison group which you mentioned before? A. As I said, I don't recall specifically. That is one possible source. Q. And can we say the same thing about the next paragraph in which you wrote, I take it: "If we do not move now, leadership on this issue could well be assumed by Ms. MacDonald of the NDP through private members' Bill, C-204." BY MR. BAKER: I'll object to that question. The line to which you have just made reference, Mr. Potter, firstly speaks for itself, but secondly and more importantly it is a political discussion, and what the politics of the situation were vis-a-vis another piece of legislation and a Member of Parliament from the Party other than the governing party, is clearly and truly of no relevance in this case. BY MR. POTTER: Well, I dispute that, Mr. Baker, but maybe we can move on simply by ... Maybe we can move on by asking one question. Q. Mr. Collishaw, do you confirm what your attorney has just said, that this is a question of politics? BY MR. BAKER: It's not open to this witness to interpret a docu- ment. BY MR. POTTER: He wrote this document. BY MR. BAKER: Of course he wrote the document, he's admitted writing the document, but as to the interpretation of the

507 NEIL E. COLLISHAW (for the Applicant) Argument & Examination by Me Potter i0 20 meaning of the document, it does speak for itself, and the rules say that the last time around, Mr. Potter, unless there's something obscure in a word or a phrase in a document that the man has written, you're not entitled to ask him to interpret the document. BY MR. POTTER: Q. Mr. Collishaw, can you tell us whether in writing these two paragraphs regarding the necessity to seize the initiative and the possibility of the issue being assumed by the New Democratic Party by Bill C-204, whether you had considerations in mind other than political considerations? BY MR. BAKER: I object. Same objection. BY MR. POTTER: 30 4O Well, Mr. Collishaw ... BY MR. BAKER: You're not asking the man to illuminate an obscure passage of a document by that question, Mr. Potter, you're asking him what motivated the writing of the document, and the document is there, you can interpret it someday as you wish and as you may try to do. But what motivated the writer in respect of those two paragraphs I submit is not open to you to ask him. BY MR. POTTER: Q. Well, I'm not getting very far on that one, Mr. Collishaw, so we will move ahead and I'm going to page 1569 which is page 2 of the longer notes for an address to the Conservative Caucus by Mr. Epp. Did you write this one as well? A. Yes, I did. Q. And I see the sentence in the very middle of the page: "The Cabinet had decided to seize the initiative by banning tobacco advertising."

5O8 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 30 40 It's a sentence which follows a reference to Ms. MacDonald's Private Member's Bill. You obviously were not present, were you, when the Cabinet decided to seize the initiative? A. No, I was not. Q. So I take it you were told by someone that the Cabinet had decided to seize the initiative? A. Yes, I was. Q. And do you remember by whom you were told? A. No, I do not. Q. Do you remember when you were told that? Was it a matter of days before this or a matter of weeks or a matter of months? A. I think it would have been in February. Q. Do you remember the February 5 telex we introduc- ed as an Exhibit. Would it have been before that or after that? 5, 1987. A. It would have been after that I think. Q. That telex, which is ITL-23, is dated February A. Yes. Q. So you say you were told of this Cabinet deci- sion sometime in February after February 5? A. Yes. Q. I draw your attention to page 3 of the same document, Mr. Collishaw, you wrote for the Minister. "The Federal Government will finally be able to limit unacceptable tobacco marketing practices such as lifestyle advertising and advertising aimed at young people." Are you aware of any list of "unacceptable tobacco marketing practices" as of March 25, 1987? A. At that point I believe we would have had the First Reading version of the legislation would have been in an early draft stage, and yes, there would have been indication in that draft of ... BY MR. BAKER: I'll object to the witness making any to drafts of legislation. reference

509 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter BY MR. POTTER: i0 20 30 4O Q. In any event, Mr. Collishaw, the legislation which came provided for a total ban of all advertising prac- tices. Are you aware of any list ... Sorry? A. I do not agree that the legislation proposed a total ban of all advertising practices. Q. Which advertising practices were not banned? A. Well, there are specific exceptions to a ban on advertising allowed in the law under various provisions. There are transitional provisions, there are provisions for packages to remain on display, provisions for sponsorships to continue. Q. I see. So when you're referring to the un- acceptable marketing practices in this, are you referring to all those practices which are now prohibited in Bill C-51? A. That would be what's contained there, yes. Q. And are you aware of any other list in your Department of acceptable or unacceptable practices except what is contained now in Bill C-51? A. Well, as you may know, there were changes from the First Reading version of the Bill to the Bill that was finally passed by Parliament. So at the time of First Reading there was one set of practices that the Cabinet wished to propose to Parliament that would have been viewed as un- acceptable, and then there were some modifications to that at the committee and report stage of the Bill. So, yes, it was a different list and the one that exists now, that being the Bill that's passed, but there was a slightly differ- ent list that would be contained in the First Reading version of the Bill. Q. I want to be sure I understand you, Mr. Colli- shaw. Are you saying that there was no list of "unacceptable tobacco marketing practices" other than what appeared in successive drafts of legislation? Did no one ever make a list of unacceptable marketing practices, other than what appeared in draft legislation? A. Of course, in drafting legislation the Department of Justice receives instructions ... BY MR. BAKER: - That's not responsive to the question, I'm sorry.

510 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 30 40 It's clear to me that the witness doesn't understand. As I understand it, you're asking him if there is a written list in the Tobacco Products Unit, are you not, Mr. Potter? BY MR. POTTER: Yes. Q. Was there a list of "unacceptable tobacco market- ing practices" in the Tobacco Products Unit other than refer- ences which we can glean from draft pieces of legislation? A. When you say "in the Tobacco Products Unit", do you mean documents prepared by the Tobacco Products Unit? Q. Yes. I'm excluding things that you received from the outfit that you referred to before, and similar outfits. Did the Tobacco Products Unit have its own list or a collection or indication of which practices were un- acceptable? A. No. Q. No. Are you aware of any other Department within Health and Welfare which had such a list? A. There were lists but it would be hard to charac- terize these lists as acceptable or unacceptable. They were options that we would put forward to the Minister for his consideration. Q. I need to ask a question to which Mr. Baker will object simply to have it on the record. Did you not independently of what the Minister decided for you was accept- able or unacceptable, didn't you have your own view, Mr. Collishaw, as to what was an acceptable practice and what was not? BY MR. BAKER: ... question. BY MR. POTTER: Q. It was whether you had a view. He's going to allow that but he won't allow what was the view. First of all, did you have your own view? Did you have a view, Mr. Collishaw, on what was an acceptable marketing practice and what was not? PAUSE BY THE WITNESS

511 NElL E. COLLISHAW (for the Applicant) Examination by Me Potter & Argument !0 2O 30 40 A. I'm pausing because ... yes, I do have views on this matter. However, my function in this situation is to provide policy advice to the Minister and a balanced analysis of all the options that are available, and I have suppressed my own views to such an extent in order to ... I have suppressed my own views to a large extent in order to be able to approach this business of policy analysis in a neutral manner, to the extent that in thinking about it, while I have my own views I would have difficulty expres- sing what they might be, independent of this policy analysis process. Q. Let me go on to another paragraph then. I seein the next paragraph you write: "If we take no action, we can be assured that there will be a vote on Ms. MacDonald's Bill, which among other initiatives , will ban tobacco advertising." I have the same question as before. Were you told that, that it was likely there would be a vote on C-204? BY MR. BAKER: I'll object. That's a question in respect of poli- tics and I think it"s irrelevant. Don't answer the question. BY MR. POTTER: And would you have the same objection, Mr. Collishaw BY MR. BAKER: Baker. BY MR. POTTER: ... to answering the question as regards the conti- nuation of that paragraph where we can see that you wrote:

512 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 40 "However, by introducing a new Tobacco Products Control Act, an Act which will be tailored to control tobacco marketing practices, the Government will be seen to undertaking an initiative which will also draw considerable public support." Was that you writing this on the basis of inform- ation which you had or were you told by someone that the Government would be seen to be taking an initiative drawing considerable support? BY MR. BAKER: The same objection, Mr. Potter. BY MR. POTTER: An objection because it's politics? BY MR. BAKER: Yes. BY MR. POTTER: Q. Let's file this document then, which is a March 25, 1987 memorandum enclosing two documents entitled "Notes for an Address to Caucus by the Honorable Jake Epp", as Exhibit ITL-26. Once again, Mr. Collishaw, for purposes of following the chronology in the transcript, I draw your attention to Exhibit RJR-8 which was filed on April 12, 1989 and which is a listing of possible questions and propos- ed answers. Do you remember this document? A. Yes. BY MR. BAKER: Is there a cover page to that or is that the top? BY MR. POTTER: - Q. There is no date on the document, Mr. Collishaw,

513 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 40 but I draw your attention to page 1576 in which there is a proposed answer to a possible question, saying: "I have advised them ..." That is to say the industry. "... this morning of my intention to proceed with a total ban." Do you know when that was? A. I know it was initially scheduled for a date in March but then there were delays with the public announce- ment to April 22, and I am unsure now as too when the industry was in fact advised. Q. Well, you would remember the notes for the address to Caucus which was March 25. A. They were prepared for that date, but as you'll recall, I said I didn't know whether they were presented on that date or not. Q. That's right. Would you not assume that these questions and answers would have been prepared at around the same time? A. They were certainly prepared around the same time, but you were asking about which specific date things actually ... the informing the industry actually occurred, and I don't recall. Q. I show you now a document, Mr. Collishaw, which begins at Attorney General's page 5398 and ends at 5403. Excuse me, there is a lettre which is attached, and I draw your attention to several of these questions and I'd like to give you the chance to do the exercise that I did. But these questions and answers bear striking resemblance to the questions and answers which are in Exhibit RJR-8, the document we mentioned. And I put it to you, Mr. Collishaw, that this document I'm now showing you, the one which begins on Attorney General 5398, is a draft which led to the ques- tions and answers document, Exhibit RJR-8. A. Yes, I would agree with that. Q. Okay. Now, the first question in RJR-8, which was the final question ans answer document, is: "Why ban advertising?"

514 NEIL E. COLLISHAW (for the Applicant) .Examination by Me Potter i0 2O 3O 40 And the proposed answer which came was, first of all: "Advertising is a reinforcing factor influencing young Canadians to view tobacco as socially acceptable." Etc. in that paragraph. The second paragraph: "There is a broad national consensus calling for strong action." And we can see in the draft, which obviously will become ITL-27, that the question is not "Why ban advertis- ing?", but: "What evidence is there that a ban on tobacco advertising will reduce consumption?" Did you have a hand in preparing the draft? A. Yes. Q. And did you have a hand in preparing the final version of the question and answer? A. Yes. Q. And you had a hand in Preparing the answers to both? A. Yes. Q. And when you wrote this question, was this draft prepared around the same time, late March 1987? A. This material would have been put together in March, possibly starting in February, but certainly around that time. Q. And when you prepared this draft, ITL-27, and wrote the proposed question "What evidence is there that a ban on tobacco advertising will reduce consumption?" and gave the proposed answer, that, A) "There is a strong con- sensus calling for action on tobacco", and, B) "Advertising is one of the reinforcing factors affecting young Canadians on the perceived social acceptability of tobacco", were you then in possession of any greater evidence than that that a ban on tobacco advertising would reduce consumption?

515 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 30 40 BY MR. BAKER: "That" meaning what, Mr. Potter? BY MR. POTTER: given. Than the two answers just given here which I've A. Yes. Q. What other evidence did you have? A. There was suggestive evidence from Norway and several other countries, Iceland, that following the introduc- tion of a ban on advertising, the prevalance of smoking among young people had declined. There was some evidence in the literature that the amount of expenditure on advertising was related to consumption. There is quite strong evidence that the reason people advertise is to persuade people to buy the products advertised, and by removing the advertising one would remove this persuasive element. Q. Okay. Well, first of all, I'll ask you to find and produce the suggestive evidence from Norway and Iceland that you had in March of 1987. Do I have that under- taking, Mr. Baker? BY MR. BAKER: You do. BY MR. POTTER: Q. Between December 18, 1986, Mr. Collishaw, and March of'87 when you wrote this draft, did you receive any evidence which contradicted your December 18 assertion that there was no compelling evidence that an ad ban would reduce consumption? A. No. Q. Let's produce this document as ITL-27 and it is a draft collection of possible questions and suggested answers. Mr. Collishaw, a few minutes ago you referred to a news release dated April 22, 1987. I'm showing you a new release. Is this in fact the news release you were referring to?

516 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 30 40 A. I think I referred to a news conference, but this news release was distributed at the news conference to which I referred, of the same date. Q. Did you have a hand in preparing this, Mr. Collishaw? A. Yes. Q. Well, I would like to produce this April 22 news release as ITL-28. BY MR. BAKER: Before we do that, do we know ... Perhaps it would be appropriate to ask the witness if all the documents or all the pages that follow 3767 are part of the news release, to your knowledge. Could you look at the document carefully, Mr. Collishaw. BY THE WITNESS: A. There are highlights of the proposed Tobacco Products Control Act following this document on pages 3768, 3769 and a document called "Facts Sheet on Tobacco", pages 3770, 3771, and then a description of the National Program to Reduce Tobacco Use on pages 3772 and 3773, a further news release from the Treasury Board of Canada on pages 3774, 3775, and a further news release from the Department of Labor, 3776, 3777 - all of these documents were made public on April 22, 1987 at the news conference to which I referred. BY MR. POTTER: Q. And except for the last document, Mr. Colli- shaw, the release from the Federal Labor Minister, and perhaps for the second last document, which is a release from Treasury Board, did you have a hand in preparing all of that? A. No. Q. Which document did you not prepare? A. Well, I did not prepare any of them. However, I did have a hand in preparing the news release, I had a hand in preparing the highlights of the Act, the facts sheet on tobacco, but I wasn't involved in the preparation of the national Program to Reduce Tobacco Use description.

517 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 30 4O Q. Well, let's file this document now then as Exhibit ITL-28. It's an April 22, 1987 news release from the Minister of Health and Welfare, including documents which were attached to that news release when it was distri- buted. Coming forward into the future, Mr. Collishaw, I show you a document dated August 20, 1987. It's a memoran- dum from the Assistant Deputy Minister to another Assistant Deputy Minister called Mr. Ian C. Green, signed by Mr. Liston, and to that memorandum is attached a list of what Mr. Liston refers to as counter-Arguments to an advertising campaign of the C.T.M.C. It goes from page 52 to page 63, using the Attorney General's numbering. Have you seen all this before? A. Yes. Q. And in fact you had a hand in preparing the counter-arguments, did you not? A. yes. Q. I draw your attention to page 53, Mr. Colli- shaw, in the third paragraph where there is a description of the Government's near-term goals, two in number, one of which is to strengthen the existing social trend against the social acceptability of smoking, and the second of which is to enhance communication of the health message by eliminat- ing widespread promotional messages. Let's deal with the first one first, Mr. Collishaw. Do you confirm that there was, prior to the introduction of Bill C-51, a social trend against the socila acceptability of smoking? BY MR. BAKER: Are you asking him to testify as a sociologist? BY MR. POTTER: No, I'm asking him to testify as a high-placed official in the Tobacco Products Unit whose job it is to monitor such things. A. There was evidence of social acceptability of smoking and also evidence of unacceptability of smoking from a social perspective, existing simultaneously. Q. Do you not confirm, Mr. Collishaw, that in your Department it was accepted that a trend was going towards social unacceptability and away from social acceptability?

518 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 4O A. Well, it's hard for me to confirm it. There was or is one trend in certain social situations or certain social categories, that smoking is socially acceptable, and in others it is not. Both exist simultaneously. Q. This document refers to an existing social trend against the social acceptability of smoking. A. Yes, yes, that's true, and there is another social fact, however, in favor of the social acceptability of smoking. Q. I take it from what you're telling me, Mr. Collishaw, that there are certain groups or situations or circumstances in which your unit detected that smoking was socially unacceptable, and other groups, situations, circumstances in which it was unacceptable? A. That' s right. Q. Had your Department not noticed and monitored a trend towards a growth in the number of circumstances and situation and circles in which it was unacceptable and a decline in the number of such circumstances, situa- tions and circles in which it was acceptable? A. There was growth in both trends. Q. Had your Department not detected and seen that among young people smoking was more and more socially unacceptable over time? A. I don't recall seeing specific data on that point you ask. However, in terms of prevalence of smoking among young people, there was a period in which it increased followed by a period of stability, and then just prior to this period, a period of some decline in prevalence of smoking among young people. Q. Okay. Let's move on to the second near-term goal, which is stated as: "To enhance communication of the health message by eliminating the widespread promotional messages." Were any studies done, Mr. Collishaw, to determine how much the communication of health message would be en- hanced by eliminating commercial messages? A. We certainly had information available to us on the lack of penetration of the health-promoting messages that the Health Promotion Group in the Department was putting forward in order to encourage a smoke-free life. For some

519 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 20 3O 4O of these messages the rates of spontaneous recall were very low, and many people in the Department and elsewhere attri- buted this, at least in part, to the fact that these messages were presented in a context in which they were completely overwhelmed by very large volumes of tobacco advertising. Q. Well, were there studies done, Mr. Collishaw, to find out the degree to which the penetration of the health message was retarded or inhibited by the presence of the commercial message? A. There were studies done to show that the level of recall was very low. The sort of study that you're refer- ring to would be very difficult to carry out and have it produce an unambiguous final answer as to what the findings could be attributed to. Q. Difficult or not, Mr. Collishaw, was a study done to determine the degree to which the penetration of your health message was retarded or inhibited or hindered by the presence of a commercial message? A. To my knowledge, no, but there may well have been some such work done. Q. And when you refer to lack of penetration of health-promotion message, is it not a fact, Mr. Collishaw, that there had been considerable penetration of that health message, but you were disappointed that there had not been more? A. That's right, but the messages we were refer- ring to and the evaluation studies that were done were speci- fically around the advertising campaign sponsored by the Health Promotion Directorate of our Department. Q. I draw your attention to page 4 of the document, Mr. Collishaw, at the bottom, in which it is written that: "It is likely that mass cigarette advertising reinforces smoking and discourages quitting over the longer term." Were any studies done in your Department, or commis- sioned, Mr. Collishaw, to confirm or deny that statement? A. We did not do or commission such studies. However, this argument is discussed by many authors that have written things that are available in the scientific literature and these documents were studied by us.

520 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 2O 3O 4O Q. And are any of those discussions that you've just mentioned, or pronouncements by various authors, are any of them dated after December 18, 1986 and before August 20, 1987? A. Well, again, I can't ... I can't ... I don't know whether ... Q. Could you please undertake to find out? A. Yes, we could. Q. The second part of that same paragraph, Mr. Collishaw, reads: "The evidence on whether levels of advertising influence tobacco con- sumption or smoking prevalence is equivocal." Now, on that question of whether advertising in- fluences tobacco consumption or smoking prevalence, had you received any evidence since the December 18, 1986 brief- ing, RJR-4? A. Again, I can't be certain one way or the other. We do get reports on this sort of thing from time to time. Q. So I take it you will undertake to find out whether you received any evidence on that question since DecemberlS, 1986? BY MR. BAKER: Yes. BY THE WITNESS: A. That's between these two dates, December 18, 1986 and ... BY MR. POTTER: Q. August 20, 1987. A. Okay. Q. And I draw your attention to page 8, Mr. Colli- shaw, at the very bottom, and we're talking again about social acceptability or unacceptability, and there's a statement here that people who receive money in relation to advertising of tobacco:

521 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter I0 2O "... become willing partners in re- inforcing the image of tobacco use as socially acceptable. Moreover, they are unavailable for colla- boration with health agencies to promote the message that tobacco use is socially unacceptable and should be discouraged." First of all, do you know of any specific instance in which any of the people like those described in this paragraph refused to give you collaboration in promoting the message which is described there? BY MR. BAKER: Mr. Potter, you say refused to give "you" colla- boration. 3O 40 BY MR. POTTER: Well, I'm sorry, I'll take out "you" Q. Refused to collaborate with health agencies to promote that message - are you aware of a specific intance? A. I'm not aware of a specific instance of a refusal -- there may well have been some -- but I am aware that when sports associations entered into agreements with the tobacco companies, it was the feeling of the Health Promotion Directorate people that those agencies could then not be reasonably approached, they wouldn't want to approach such sports agencies about collaboration with the Health Agency because of the mixing of messages that oculd potentially OCCUr. Q. Are you saying that they wouldn't want to approach those people because they feared they would be uncooperative or because they didn't want to use the same medium to commu- nicate your good message and everyone else's bad one? A. I can't say which of those propositions would be the stronger. Q. So I take it from what we've been saying, Mr. Collishaw, that within your Department there was a decision that it was important to get the monopoly of the message

522 NEIL E. COLLISHAW (for the Applicant) Examination by Me Potter i0 because sharing the message with other people was diluting the effect of your message. Is that correct? A. No. I think that's overstating the case. Q. Okay, let's break for lunch, let's produce this document as ITL-29, and this is an August 20, 1987 covering memorandum and list of counter-arguments to an advertising campaign. ADJOURNMENT AT 12:35. TO BE CONTINUED AT 2:30 ANN M. LLOYD Official Court Reporter 20 3O 4O

523 NEIL E. COLLISHAW (for the Defendant) Cross-examination by Me Potter i0 2O April 26th, 1989 P.M. APPEARANCES: Me SIMON POTTER OGILVY, RENAULT Attorney for Plaintiff Me GEORGES THIBAUDEAU MACKENZIE, GERVAIS Me ROGER BAKER, Co-Counsel for Defendant & Me ANNE MARIE WILLIAMS BAKER, NUDELMAN Me CLAUDE JOYAL Attorneys for Defendant & Me PASCALE LEGACE DEPARTMENT OF JUSTICE 3O 4O (EXAMINATION ON AFFIDAVIT OF NEIL E. COLLISHAW HAD APPEARED: MR. NEIL E. COLLISHAW NEIL COLLISHAW UNDER THE SAME OATH CROSS-EXAMINATION BY Me SIMON POTTER ATTORNEY FOR PLAINTIFF: Q. Mr. Collishaw, I'm showing you another docu- ment; this one is dated November 6th, 1987. It is a memoran- dum to Dr. Maureen Law from Dr. Liston, the Assistant Deputy Minister, and attached to it is a speech to the Minister for his consideration, and it's a speech which was to have been given to the Advertising Club of Winnipeg and the speech itself is dated November 20th, 1987.

524 NEIL E. COLLISHAW (for the Defendant) Cross-examination by Me Potter i0 2O 30 40 Do you remember seeing this document? A. Yes. Q. In fact, did you have a hand in it's preparation? A. Yes, I did. Q. And is this one of those documents that went yp the line of authority receiving successive approvals until finally it hit the Minister? A. Yes. Q. Were you there when the speech was given? A. No. Q. Do you know in fact whether the speech was given or not? A. He did give a speech to the Advertising Club of Winnipeg; I believe he based his remarks on this speech although I couldn't say for certain that he uttered every word that is written here. Q. Okay. This document spans the Attorney Gener- al's pages sixty-four (64) through eighty-one (81); let's go to page seventy-three (73) and at the very bottom of the page we see a reference to the question we were discuss- ing before lunch Mr. Collishaw, regarding the penetration of the health message and the interference which some people thought that the commercial messages were causing, and I see in the last four (4) lines it is written: "simply stated many just don't take health warnings seriously when they are bombarded at every turn of the head with soothing tobacco company ads promoting this product as normal, good and glamourous. The young are particularly vulnerable to such appeals" Now, I asked you this morning whether there had been studies of the extent to which the penetration of the good messages were being hampered by the presence of the bad ones, but can you tell me Mr. Collishaw whether any studies have been done to justify this statement that "many just don't take health warnings seriously when they

525 NEIL E. COLLISHAW (for the Defendant) Cross-examination by Me Potter are bombarded at every turn of the head with soothing tobacco company ads" l0 20 30 40 Were there any studies done to justify that state- ment? A. There are studies I am aware of, done in the United States on health warnings present on packages, that indicate the ... the warnings, as they existed when the studies were done, had very little effect. Q. Are there studies that link that conclusion that you have just mentioned to the fact that commercial messages are available to the same people who receive the health messages? A. There may be, I'm not especially aware of that; however I am aware of the fact that expenditures for tobacco advertising, when - that were in 1987, were in the neigh- bourhood of seventy-five (75) to eighty million dollars ($80-Million), and the total expenditures by the federal government and the provincial governments and the voluntary agencies combined, did not exceed five million dollars ($5-Million) for promoting - messages promoting the value of the smoke-free life in the same year. Q. I see. Well from what you've said Mr. Collishaw and I want you to correct me; I conclude that, except for the fact that commercial messages cost much more money than the government's health messages, and except for the studies you have referred to showing that some health warnings in the United States were not taken seriously, there were no studies, that you can remember now, which indicated that health warnings were not taken seriously because people were exposed at the same time to commercial messages. A. When I first answered this question, I inter- preted "health warnings" to mean warnings that - specific warnings that are printed on packages or in advertisements, but there is another meaning that could be taken from this sentence and, referring to warnings of the health hazards of tobacco in general and, if one were to take that meaning from the sentence, then we have a number of surveys that have been done that show low levels of awareness of many of the health hazards of using tobacco.

526 NEIL E. COLLISHAW (for the Defendant) Cross-examination by Me Potter i0 20 3O 4O Q. Do you have any studies that link what you call "a low level of awarenesse" - the judge will decide just how low it is - that link that level of awareness to the existence of commercial messages? A. I don't have any studies that offer an unambi- guous demonstration of such a link but these studies I have referred to would support the hypothesis that there was such a link. Q. So when I see here the statement in a speech which went through the levels of authority of your depart- ment in November of '87, that is to say as Bill C-51 was nearing - was moving through it's levels of approval in Parliament, when I see the statement that "... simply stated, many just don't take health warnings seriously when they are bombarded at every turn of the head with soothing tobacco company ads". I understand from you that there were no studies which said so explicitly, but there were some studies which were consistent with the hypothesis that that was so; is that true? A. Yes. Q. Well, would you undertake to provide - to submit the studies which were relied on to make that statement? The studies which you say were consistent with the hypothesis? Do you undertake that, Mr. Baker. Me ROGER BAKER, Q.C.: CO-COUNSEL FOR DEFENDANT: Sure. BY Me SIMON POTTER: shaw, that Okay. The statement goes on the say, Mr. Colli- "The young are particularly vulnerable to such appeals" - Did your department have in November of 1987 any

527 NEIL E. COLLISHAW (for the Defendant) Cross-examination by Me Potter i0 2O 30 40 studies showing that "young" Canadians are more vulnerable than other Canadians, to commercial messages and to the interference which those messages would have with the health message? A. My reading of this sentence would suggest that it refers to - not to both propositions that you mentioned, but just to the one (i) that products are - appeals of products being "normal, good and glamorous" Q. I see. Well whether it's to both propositions or only the one (I) you've just mentioned, in November of 1987 did you have evidence that the young are more vulner- able than others to the suggestion that tobacco is "normal, good and glamorous"? A. I can't recall specifically, a particular study that might demonstrate that, but there may well be such studies. Q. Well, will you undertake to look for some studies? A. Yes. Q. Which indicate that the young are more vulner- able than other people to commercial suggestion that ciga- rettes are normal, good and glamorous? A. Yes. Q. Now let's go to page seventy-eight (78) and I'm interested in the paragraph beginning "It is not true"; please read that paragraph. (Witness reading paragraph in question). BY Me SIMON POTTER: Q. First of all can you see the statement in that paragraph that: "In the five (5) years following the tobacco advertising ban in Norway, cigarette sales declined by fifteen percent (15%)" A. Yes. Q. In the years following the tobacco advertising ban in Norway, Mr. Collishaw, were there not successive. price increases in Norway?

528 NEIL E. COLLISHAW (for the Defendant) Cross-examination by Me Potter i0 20 3O 4O A. There were price increases of substantial size, I believe beginning in 1980; so that would have been six (6) years following the ban on advertising in Norway. Q. Are you saying that the fifteen percent (15%) decline which is mentioned there can be attributed only to the tobacco advertising ban? A. No. Q. Now when this was written in November of 1987, had you received, Mr. Collishaw, any evidence additional to the evidence which you had in December 18, 1986, as regards the experience which had been lived through in Norway? A. I believe I did receive updated information sometime during 1987, on the situation in Norway. Q. Okay. Would you undertake please to provide me with the information which came to you between December of '86 and November of '87 in relation to the experience in Norway? A. Yes. Q. Can you see also the statement in that paragraph that "per person consumption rates in Norway and Finland are fifty percent (50%) lower than in Canada"? A. Yes. Q. Do you remember the statement which we saw in a few documents earlier today that " Per capita consumption rates in Norway had been stable for about thirty (30) years"? A. Yes. You will recall I qualified that remark by saying "plus or minus half a kilogram" Q. "Plus or minus twenty-five percent (25%)" - that's right, that's what you said. Is it not fair to say, Mr. Collishaw, that the stability of those per capita con- sumption rates over thirty (30) years was relied on by you in the December 18, 1986 memorandum, in order to say that there was no conclusive evidence from Norway that advertising bans had any effect? A. I believe the word I used was no "compelling evidence"

529 NEIL E. COLLISHAW (for the Defendant) Cross-examination by Me Potter i0 20 30 40 Q. I'm sorry, is it not true that the stability of the per capita consumption in Norway over a period of thirty (30) years was relied on by you in order to say, in December of 1986, that there was no compelling evidence that an advertising ban would have any effect on consumption? A. In part, yes. Q. And, as of November of 1987, when this speech was written, with this reference to the experience in Norway, did you have any more information regarding the stability or instability of those rates of consumption in Norway? A. Again I think I did; I think I got some updated information from my colleagues ... Q. So the last undertaking you made would ... A .... that should cover this question as well, yes. that: Q. Can you see the sentence in there, Mr. Collishaw, "In countries where tobacco advertising has been effectively banned, consumption has remained stable and at low levels.''~ A. Yes. Q. It may be the - just a lawyer's training and suspicion but I note that care has been taken to say that "consumption has remained stable" Did you have evidence in November of 1987 that consumption had declined at all significantly after a tobacco advertising ban? A. Well, there was some decline in per capita consumption in Norway; not very much, but some, and I believe there also was in Iceland and Finland and Singapore, which ar the four (4) countries where I consider that tobacco advertising has been effectively banned, for which I have information. Q. And for those countries you have just named, do you have what you consider to be reliable per captia statistics? A. Per capita consumption of tobacco? Q. Yes. A. Yes. Yes. Q. Well, could you undertake to provide the sta- tistics which were available to you as of November 1987 regarding per capita consumption in those countries? A. Yes.

53O NEIL E. COLLISHAW (for the Defendant) Cross-examination by Me Potter I0 20 3O 4O Q. Okay now, this page that you are looking at, Mr. Collishaw, that paragraph - I put it to you, and I can refer you to particular pages of previous exhibits - that in writing that paragraph the writer was relying on the same information that had been used in previous documents to say that there was no compelling evidence that an advert- ising ban had any effect? A. Substantially the same information, yes, with the difference, as I mentioned, I think I did receive some updated information during 1987. Q. That you will be disclosing to us? A. Uh-huh, yes. Q. In fact one of those documents which is dated May of 1987, Mr. Collishaw, and it's a document already produced on April 12, 1989, under Exhibit Number RJR-7; at page 10129 of that document, you referred to "Norway and Finland having remained at very low levels of approximately two (2) kilograms per adult throughout the entire 1950 to 1985 period. In Canada, it was as high as four point eight (4.8) kilograms per adult in 1959 and was four (4) kilograms per adult, or more, until the mid seventies (70's); currently in Canada it is about three (3) kilograms per adult - fifty percent (50%) higher than the levels currently prevailing in Norway and Finland." I put it to you, Mr. Collishaw, that in the two (2) countries, which are mentioned here, in which there was an advertising ban at some point during that period, consumption per capita remained stable, and in the one (i) country in which there was not an advertising ban during that period, there was a steady and continuing decline in per capita consumption; is that not correct? A. It is correct; it is also correct that consump- tion did not go up very much in Norway and Finland. It also may be true that consumption in Canada may have gone down faster than it did, had there been an earlier restrict- ion on advertising in Canada. We'll never know.

531 NEIL E. COLLISHAW (for the Defendant) Cross-examination by Me Potter i0 20 30 40 Q. We'll never know, and in fact you are in posses- sion on no studies to indicate whether that's so or not? A. No. Q. Well, let's produce this document then as Exhibit ITL-30 and this is the November 6th, 1987 memorandum of Mr. Liston to Dr. Law, enclosing the text of a speech suggest- ed to the Minister. Now moving down the time line, Mr. Collishaw, I show you a document which bears the Attorney General's page numbers 3077 to 3095, it is entitled "Third reading of Bill C-51, Tobacco Products Control Act, notes for an Address to Parliament by the Minister"; have you seen this document before? A. Yes. Q. Did you have a hand in preparing this? A. Yes, I did. Q. And I draw your attention to page 3089, the last paragraph on that page in which you were suggesting to the Minister that he address the Parliament on the question of the experience in Norway. Perhaps you would like to take the time to read that paragraph. (Witness reading paragraph in question). Q. Okay? Paragraph begins with the sentence that "The general effect of legislative restrictions is vividly demonstrated in the stabilization of tobacco consumption at low levels in industrialized nations where anti- smoking legislation has been combined with education" Can you tell us the date on which this was made? A. The date on which the speech was written? Q. Yes. A. And I can't tell you an exact date; it probably would have been in April or May of 1988. Q. Okay. Now did you have at that time any inform- ation, or evidence, which would contradict your statement which you made in December 18, 1986, that:

532 NEIL E. COLLISHAW (for the Defendant) Cross-examination by Me Potter 10 20 30 4O "ThEre was no compelling evidence that an advertising ban would have any effect on consumption"? A. No, nor did I have any information to contradict the statements made here. Q. So you are in possession of no more evidence then than you had been in December of 1986? A. Yes ... Q. The last undertaking will take care of that, is that right? A. Yes, that's right. Q. Okay. I see also the two (2) sentences "Tobacco advertising in Norway for instance was banned in 1975. Smoking prevalence among young people has declined slowly but steadily since then" Now you have already confirmed to us that per capita consumption of tobacco in Norway had been about stable for thirty (30) years until 1985; is that right? A. About stable with this margin plus or minus Q. With your plus or minus twenty-five percent (25%)? A. Yes. I did, however, indicate that there had been some decline since 1975, although not much. Q. Not much. And to be fair to you, this state- ment does not refer to per capita consumption but to smoking prevalence ... A. Yes. Q .... that is to say the proportion of people who actualy smoke regularly. A. Yes. Q. And what evidence did you have when this was done in May of 1987: "... that smoking prevalence among young people had declined slowly but steadily since the advertising ban"? - A. I mentioned the speech was prepared in April