Taser test may spark civil suit - Dziekanski stun gun should be subpoenaed: Lawyer

December 12, 2008
Nelson Bennett, Richmond News

An independent test that has resulted in two dozen Tasers being taken out of service by the RCMP could open the door to a civil suit against its manufacturer, confirms the lawyer representing the mother of Robert Dziekanski. "I believe it was an X26," said Walter Kosteckyj, the lawyer representing Dziekanski's mother. "As to when it was produced, I don't know. The weapon should have been seized at the time and it should have been subjected to testing. We don't know any of that because the police are saying it's still ongoing."

Dziekanski, a Polish immigrant, died after he was Tasered by Richmond RCMP officers at Vancouver International Airport in October last year. The official cause of death has yet to be determined.

The incident, which was captured on videotape, has sparked a criminal investigation and a public inquiry.

The RCMP and other police forces have assured the public that the Tasers they use are tested routinely to make sure they work right. But when CBC and Radio Canada commissioned an American lab to test 44 X26 Tasers, National Technical Systems found three did not fire and four produced more of an electrical charge than the manufacturer claims they can produce.

In some cases, the current was up to 50 per cent stronger than specified. All four of the Tasers that malfunctioned were manufactured before 2005.

The tests raise a number of questions: Was the Taser used on Dziekanski the same model as those which have proven faulty? If so, will it be tested to determine whether it was malfunctioning? And if it was faulty, could the manufacturer be held liable for Dziekanski's death?

RCMP Sgt. Tim Shields will not say what model of Taser was used on Dziekanski or when the device was acquired. That information is in the hands of the Crown.

Richmond RCMP spokesperson Cpl. Nycki Basra insists the Tasers used by the RCMP are tested regularly and questions the CBC-commissioned tests. "They are routinely calibrated," Basra said. She added the RCMP has asked to see the details of the test results from CBC.

This week the RCMP pulled 24 X26 Tasers from service across Canada for testing, and Solicitor-General John van Dongen has ordered B.C.'s municipal police forces to pull all Tasers acquired before Jan. 1, 2006 out of service.

If Dziekanski's mother decides to sue in civil court, the weapon could be subpoenaed for testing. "If, in the event there's been a civil action, when civil action commences, then we can get an order to have that examined also by an expert," Kosteckyj said. "Now, that presumes it hasn't been tampered with."

If the Taser was found to have produced more of a charge than it is supposed to, that could form grounds for a wrongful death suit against the manufacturer.

But as Kosteckyj points out, any settlement that might result would be nothing like those awarded in the U.S. The wrongful death statutes in B.C. do not allow judges to award punitive damages, Kosteckyj said.