Tobacco Documents Online

533 NEIL E. COLLISHAW (for the Defendant) Cross-examination by Me Potter i0 20 30 40 or May of 1988. Q. Oh, I'm sorry; I bdg your pardon, you're right, 1988. A. With respect to Norway, what we had was informa- tion pertaining to prevalence of smoking among children of ages thirteen (13), fourteen (14) and fifteen (15), based on surveys undertaken in 1970, '75, '80 and '85, in Norway. Q. Will you undertake to provide those surveys to us? A. Yes, they'll be covered by the undertaking we made previously. Q. Then you see the statement right after the words : "Since then", - that is to say since the advertising ban - "tobacco consumption in Norway has stabilized at around two (2) kilograms per adult each year." Do you not agree with me, Mr. Collishaw, that that stabilization happened in 1955? A. It's a question of interpretation; previously I had said the consumption was stable plus or minus half a kilogram which, in the context of looking at tobacco con- sumption in Canada where it's, as we say previously, has been as high as four point eight (4.8) kilograms, isn't such a large amount. But there have been variations in Norway and there was a slight upward trend up until 1970 and there was a slight upware trend up until 1970 in Norway. I believe, followed by a stabilization and a slow decline since that period. Q. Well, I agree with you it must be a matter of interpretation Mr. Collishaw, and I draw your atten- tion once again to the Exhibit RJR-7 which is dated May 25, 1987, that is to say one (i) year previous to the document we are looking at now, and in that document at page 10129 Tobacco Products Unit, okay? A. Uh-huh. Q .... you wrote: "What is significant is that tobacco consumption in both Norway and Finland has remained at very low levels of approximately two (2) kilograms per adult throughout the entire 1950 to 1985 period".

534 NEIL E. COLLISHAW (for the Defendant) Cross-examination by Me Potter I0 Now I put it to you Mr. Collishaw, that what you were saying there and your interpretation at that time was that there was remarkable stability for a period of thirty (30) years. A. Yes. Q. Whereas here, in this document one (i) year later, what you are suggesting, I put it to you Mr. Collishaw, is that the stability was achieved with the advertising ban in 1975. 2O 30 40 Me ROGER BAKER, Q.C.: Well, Mr. Potter, you're now asking the witness to interpret a set of documents and that, I submit, you're not entitled to do. If you're asking for data out of the documents - that is another story. If there is a contradiction, and you want to make a comment on them by way of argument at some point in the case, I am sure you'll see fit to do so. But to put it to this witness in cross-examination, to do your work for you, I find objectionable. Me SIMON POTTER: Well, perhaps Mr. Baker, and I will live with your objection, but I did not do it in order to put the witness to the work which I have already done; but in order to be fair to him before, I made exactly the suggestion that you were talking about. (TO WITNESS): Q. Mr. Collishaw, I now only have a few "mop-up" questions. Oh, I'm sorry, yes, let's produce this document first of all and this becomes Exhibit ITL-31 and this is the April or May 1988 Notes for an Address to Parliament by the Minister, after a reading of Bill C-51. You remember Mr. Collishaw that there was a lengthy list of documents produced in the Rothman's proceedings in Toronto; the document that your attorney suggests was

535 NEIL E. COLLISHAW (for the Defendant) Cross-examination by Me Potter & Argument i0 20 30 40 communicated to me illegally or irregularly; do you know the document to which I refer? A. Yes, I do. Q. Do you know whether there were any documents excluded from that list on the basis of the privilege or confidentiality or "Queen's Confidence" which your attorney has alleged over the past four (4) days of discovery? Me ROGER BAKER, Q.C.: I am going to instruct the witness not to answer that question, Mr. Potter. What was produced in another case, unless there is agreement by all of the pattie about the law suits in Montreal and Toronto to bring those documents into this record, what the Department's counsel in Toronto did in respect of Rothmans, is of no possible relevance in this case. Me SIMON POTTER: Well, it was nevertheless a list of documents which emanated from the client which you represent and which was stated as being documents relevant to a case which is near identical to this one, and Mr. Baker, I am seeking your undertaking to do what you have undertaken to do in relation to other requests on which you claim what you call "Queen's Confidence", and that is simply to advise as to the date and kind and existence of the documents which have been withheld from us. That's all I'm asking for - I just want to know whether there have been documents withheld from us and if so, what is their nature and date and to whom they went. Me ROGER BAKER, Q.C.: What would be the basis of such a request, Mr. Potter? Me SIMON POTTER: Well, if I am correct in maintaining that your claim of what you call "Queen's Confidence" is wrong and ill-founded, then I may have a claim to those documents. And when we discuss before the trial judge, or any other

536 NEIL E. COLLISHAW (for the Defendant) Argument I0 20 30 40 judge, the validity of your claim for confidentiality or "Queen's Confidence" or privilege, it will be appropriate to put before that judge the entire list of documents for which you claim that privilege and I want to know which ones we're talking about. Me ROGER BAKER, Q.C.: So if therefore I understand the substance of your question and your request, you're essentially asking Mr. Collishaw to give you an inventory of every single document that exists within the bosom of the Department of Health and Welfare in connection with any possible connection to this case so it could be determined if some were excluded and for perhaps what purpose. Do I understand the substance of your request correctly? Me SIMON POTTER: Well so far we have on record a series of documents, which are among those that have been provided to us, on which you nevertheless claim what you call "Queen's Confi- dence". Me ROGER BAKER, Q.C.: On some, possibly. Me SIMON POTTER: But I'm fearful that there are other documents which have not been provided to us which, were it not for what you call "Queen's Confidence", would have been provided to us. And not knowing what those documents are and in order to have the matter resolved with all evidence before the judge, either our own or another judge, I would like a list of what those documents are - the ones which have been withheld from the list which we have, and I'm asking you to undertake to give me that list. Me ROGER BAKER, Q.C.: On which confidence is being claimed?

537 NEIL E. COLLISHAW (for the Defendant) Argument I0 2O 30 40 Me SIMON POTTER: That's right. Me ROGER BAKER, Q.C.: As I think I told you last time around, we were to make inquiries to the Department and the Office of the Privy Counsel. As I personally am not aware of what docu- ments may or not be in question, and that I think I undertook to Mr. Irving at that time, that somehow I would make you aware of a document, or a series of documents, without perhaps having the right to name them, that there were certain confi- dences being claimed and we would give you the opportunity to deal with than at an appropriate time and in an ap- propriate forum - in other words, you would not be met with simply a blank stare. So to the extent that I made that undertaking two (2) weeks ago, I reiterate it to you because that was made in the RJR MacDonald case. Me SIMON POTTER: Well, I'm not content to rely on the undertaking you've made previously, because I understand that undertaking to relate only to documents which have been discussed during this Examination or the RJR Examination and to relate only to documents which your opponents have actually seen, and I'm asking for the list of documents which have been withheld from us on the grounds of the privilege or confidence which you claim. And I would like your undertaking to have the similar list of those documents. Me ROGER BAKER, Q.C.: I'm not certain that I'm entitled as a matter of law to give you a list of documents to which a claim of confidence is being claimed, Mr. Potter. Me SIMON POTTER: Okay. Do I have your undertaking to look at the question and to advise me whether you accept to give me

538 NEIL E. COLLISHAW (for the Defendant) Argument i0 2O 3O 4O such a list or not? Me ROGER BAKER, Q.C.: I will make an undertaking to you to look into the question and to advise you in some conclusive way as to (a) whether there are documents which were looked at and which you are nor entitled to see, if no confidence is being claimed. Beyond that I cannot go save to tell you that if there are some which fall into the latter cate- gory, I willlet you know that there are documents in the latter category which I can't characterize or describe for you in a list as they may be subject to a confidence. You would then be in a position of somehow trying to find a forum at which you could get at on what is being claimed or not being claimed a confidence. Me SIMON POTTER: Well, next week I'll read the transcript and see if I understand that you have undertaken ... BY Me ROGER BAKER, Q.C.: It was not a deliberate attempt at obscurity, al- though I'm tried and it might well be. BY Me SIMON POTTER: Q. Okay. Mr. Collishaw, because of what I see as the progression over 1986, 1987, 1988 of the kind of information which was appearing in speeches and memoranda and so on, I am obliged to put to you the following propo- sition which I'd like you to agree or disagree; that when it was decided by your Minister that he opted for what you called "his recommendation to go forward" with what turned out to be the advertising ban we now see in C-51, you were instructed to prepare documents from then on in a way to justify an advertising ban. Me ROGER BAKER, Q.C.: - I object; what the Minister instructed - or the

539 NEIL E. COLLISHAW (for the Defendant) Argument i0 20 3O 40 Cabinet instructed a department of government to do in connection with the statute is certainly not open for you to get at Mr. Potter, and I will instruct the witness not to answer the question. Me SIMON POTTER: Well, I think we've seen documents which the witness has either prepared or he participated in preparing, and I submit you're entitled to disagree but the judge will decide, that the documents after March of 1987 take a very different line of attack and are in a very different mood and atmosphere from the documents which precede December 18, 1986, and I think I am entitled to find out why that is so and I am entitled I believe to find out whether the people writing those documents were not instructed to change their tune, and that's the question I'm putting to Mr. Collishaw. Me ROGER BAKER, Q.C.: Well, that is the question I have told you I object to and I have instructed the witness not to answer, but you're mis-stating, in serious part I think Mr. Potter, several of the responses, earlier responses that Mr. Colli- shaw gave to you. He characterized some of the documents to you that you put to him in the period as being documents that put both sides of the questions ... both sides of the question - those were his duties; you may recall you asked him questions in that regard this morning. But as to whether he was instructed once the government decided to go forth with the piece of legislation to change the stream of the documents that he was doing, I object to, and I have instruct- ed him not to answer and he will not. BY Me SIMON POTTER: Q. Mr. Collishaw, thank you very much. Subject to the information that will come out of all these under- takings you've kindly accepted to give, I think that will be the end of the Examination. A. You're very welcome Mr. Potter.

540 NEIL E. COLLISHAW (for the Defendant) Argument i0 BY Me SIMON POTTER: Thank you. AND FURTHER DEPONENT SAITH NAUGHT. K. KHANNA Official Court Reporter. 2O 3O 4O