Judge in taser probe rejects bias allegations

August 15, 2009
Ian Bailey, Globe and Mail

The Braidwood inquiry's lawyer is rejecting allegations of bias in a motion by Taser International Inc. that seeks to quash findings by the probe into police taser use.

The stun-gun manufacturer, based in Scottsdale, Ariz., yesterday followed through with a pledge to file a motion in B.C. Supreme Court seeking to quash findings last month made on the safety of tasers as part of a first-phase report by Thomas Braidwood, a retired justice of the B.C. appeal court. The company alleges bias by the inquiry's commissioner, its lawyer and a medical expert.

“I have every confidence the courts will sort this out,” Art Vertlieb, lawyer for the inquiry, said in an interview yesterday.

No date has been set for a court hearing to deal with the submission, the second attempt to seek judicial intervention in the work of the inquiry after lawyers for four Mounties sought to head off Mr. Braidwood's ability to find fault in their conduct in dealing with Robert Dziekanski. That bid was rejected by the B.C. Supreme Court.

The 40-year-old Polish immigrant died on Oct. 14, 2007, after a confrontation at Vancouver International Airport with the police, drawn to the scene because Mr. Dziekanski was acting erratically. Mr. Dziekanski was subjected to about 30 seconds of taser blasts.

He died of cardiac arrest. The use of the taser has not conclusively been linked to his death, but Mr. Dziekanski's demise has prompted an ongoing debate over the police use of stun guns, including the ongoing Braidwood inquiry.

“Commissioner Braidwood ran an open, transparent and public hearing and everyone had a chance to come and say what they wanted. Mr. Braidwood is no more biased than I and I am no more biased than he is,” Mr. Vertlieb said in an interview.

But the motion filed by David Neave, a Vancouver-based lawyer for the taser producer, suggests Mr. Braidwood and his team ignored Taser-provided studies and research, and relied on “inadequate” medical research.

“The commission was selective in the material it considered without good or any cause,” says Taser's submission. “Further, the commission refused or neglected to consider the medical and scientific research which supports the general safety or efficacy of conducted energy weapons when deployed against a human being, giving rise to a reasonable apprehension of bias.”

Last month, Mr. Braidwood issued 19 recommendations limiting and reforming the use of tasers, including tougher standards for their deployment, a five-second limit on their discharge, and province-wide standards on their use, training and reporting on use.

The B.C. government immediately adopted the Braidwood recommendations.

The inquiry is now in a second phase, which is more focused on the fate of Mr. Dziekanski.

Mr. Vertlieb said Mr. Braidwood has done his best to consider all opinions and materials on taser use.

“There was extensive material filed and presented by many people and the commissioner worked very hard to consider all the different issues and concerns as is indicated in his report,” Mr. Vertlieb said.

“The commissioner had people from Taser come and present personally and more evidence that Taser wanted was produced and listened to by the commissioner and the commissioner went out of his way to listen to the differing points of view.”

Mr. Vertlieb, travelling outside B.C. yesterday, said he was hard-pressed to assess the merits of Mr. Neave's submission because he had not had an opportunity to examine it.

The Braidwood inquiry is to resume in September. It was adjourned until the fall when an e-mail among senior RCMP officials suggested the four Mounties discussed, in advance, the option of using a taser on Mr. Dziekanski. That would have been at odds with the officers' testimony to the inquiry. The contradictions are to be the subject of further hearings.