Taser maker has uphill battle with judicial review: experts

August 16, 2009
By David Karp, Vancouver Sun

VANCOUVER — Taser International will have a tough time convincing a court to quash the Braidwood inquiry’s recommendations surrounding Taser use, two experts say.

“It doesn’t sound like something I’d think would have a huge chance of success, but as soon as I say that, no doubt I’ll be proven wrong,” said David MacAlister, a professor with Simon Fraser University’s department of criminology.

“It sounds to me like they have a lot of money and the report didn’t come out the way they wanted it to, so they have nothing to lose by challenging it.”

On Friday, Taser International, which manufactures the Taser stun gun used by police, filed an application to the B.C. Supreme Court arguing that commissioner Thomas Braidwood made “unreasonable findings of fact” and breached “principles of procedural fairness.”

Taser International is asking the court to quash the recommendations made by Braidwood, who is leading an inquiry into the death of Robert Dziekanski. The Polish man died after RCMP officers shocked him with a Taser at Vancouver International Airport.

In July, Braidwood released a report recommending that the threshold for police using a Taser should be raised from “active resistance” by a suspect to a threat of the suspect inflicting bodily harm.

“The fact that the terms of reference (of the inquiry) are broad and the fact that it’s a policy piece he’s been asked to write and not a hearing — both of those things are going to make the court more deferential to Braidwood’s findings,” said University of B.C. law professor Cristie Ford. “It’s going to be a difficult case to make.”

Late last week, commission counsel Art Vertlieb said in an interview that there is no merit to the allegations by Taser International.

“Commissioner Braidwood ran an open, public and transparent process. He went out of his way to accommodate everybody who had a point of view,” said Vertlieb.

Taser International is also asking the court to declare that Vertlieb was biased and failed or neglected to ensure all medical and scientific literature was presented to Braidwood. But Vertlieb dismissed those claims.

“I’m as independent as the commissioner. I have no bias, nor does the commissioner. We just did our job and brought in all the evidence that we thought should be listened to, and it was up to the commissioner to listen to and weigh it,” he said.

The filing by Taser International argues the medical research used by the commission was “inadequate” and “flawed or irrelevant,” and claims the commission didn’t consider the material or experts Taser brought forward, naming four specific experts.

But one of those experts, Los Angeles-based cardiac electro physiologist Dr. Charles Swerdlow, said in an interview he believes the commission heard him out.

“My impression is that this has been a very thoughtful commission, and an enormous amount of work has gone into it,” he said during an interview. “I’m sure the commissioner thought about this pretty carefully, from my observations. If the implication from Taser is that these guys did not think about it, that’s almost certainly not true.”

UBC’s Ford said Taser International’s best chance probably lies with the procedural fairness argument, but that would still be a difficult case to make. The commission is expected to have “heard both sides, with an open mind and desire to be competent about it,” Ford said, so it would be Taser’s responsibility to establish that didn’t happen.

“The standard that Taser is going to try and establish is . . . (Braidwood’s) findings are so unreasonable that they can’t stand. The difficulty there is the amount of deference the court is going to give to the inquiry,” she said. “They are not going to rush in to second-guess Thomas Braidwood, who has been on this for a couple years now.”

The filing is typical behaviour for Taser International, SFU’s MacAlister said.

“They’ve made a policy of fighting any kind of adverse ruling, whether it be from a coroner or a commission like this. They fight it all the way,” he said. “This is just another example of them doing that.”