British Columbia government wants Taser legal challenge of inquiry results tossed

April 11, 2010
By James Keller, The Canadian Press

VANCOUVER, B.C. — Taser International's fight to quash a public inquiry report that concluded the controversial weapons can kill lands in a Vancouver courtroom on Monday.

The British Columbia government will ask the court to toss the weapon manufacturer's legal challenge of the findings from commissioner Thomas Braidwood's report from the first phase of a public inquiry prompted by the death of Robert Dziekanski at Vancouver's airport.

The 550-page report released last year found that a jolt from a Taser could be fatal, and the weapons' use should be restricted.

Arizona-based Taser, which has a long history of litigation against any suggestion the stun guns are unsafe, responded with a blistering legal challenge alleging bias on the part of Braidwood, the inquiry's lead lawyer and a medical expert involved with the proceedings.

The province has now filed its own equally biting reply, calling Taser's petition "offensive and abusive."

"The only evidence of any bias is that the petitioner (Taser) says the conclusion is wrong," the province said in a document filed with the B.C. court.

"That is, the petitioner believes that the case that the Taser is harmless is so overwhelming that the commissioner's contrary findings themselves give rise 'to a reasonable apprehension of bias.' This is an extraordinary attempt to use judicial review to conduct a collateral attack."

Monday's hearing will deal with the government's motion to dismiss the legal challenge.

The B.C. government ordered a two-part public inquiry after Dziekanski's death in October 2007.

RCMP were summoned after the would-be immigrant became agitated and began throwing furniture in the arrivals area of the airport. He was confronted by four officers and stunned multiple times with a Taser.

The first phase of the inquiry was held in 2008, when Braidwood examined Taser use in general by law enforcement agencies in British Columbia.

While his report from that phase raised concerns about Tasers and recommended changes to how they're used, Braidwood also said they are a necessary tool for police.

The commissioner then undertook months of hearings last year examining Dziekanski's death specifically, and a final report from that phase is expected to be made public by the summer.

Last August, Taser filed a petition with the B.C. Supreme Court asking that Braidwood's first report be thrown out and that he be prevented from using any of his findings - which include that Tasers can kill - in his report into Dziekanski's death.

The petition alleged Braidwood made conclusions that weren't supported by the evidence, and that Taser was denied the right to fully participate.

"Was the process by which that conclusion was reached a fair one? We say it was not," Taser's lawyer, David Neave, said in an interview.

"The company is concerned that the principles of fairness were not followed."

The B.C. government contends Taser had no legal right to participate, but was nonetheless given "extraordinary" involvement as a courtesy.

Furthermore, the province argues Braidwood's report can't be subject to judicial review because the first phase of the inquiry was a "study commission" the role of which was to make policy recommendations to the government, not to determine facts or assign blame.

"Taser was afforded every opportunity to make submissions to the study commission," the province's said in a court filings for the pending case.

"What Taser cannot do is control the way the submissions are weighted and assessed."

It's not clear how much difference the case will make to how the weapons are used in Canada, regardless of whether the report's conclusions are thrown out or allowed to stand.

The RCMP has already significantly restricted its policies on how the weapons should be used, and the B.C. government has adopted all of Braidwood's recommendations.

But Taser has a long history of aggressively defending its weapons in court.

Last year, the company sent out a news release boasting it had successfully won its 100th dismissal of a liability lawsuit, however, the company cannot claim a perfect legal record. In 2008 a California jury ruled the weapon was at least partially responsible for the death of a man who died in police custody.

The company is quick to contact media organizations about stories on deaths that may be linked to use of their weapons, and when a state medical examiner in Ohio ruled that three men's deaths were in part caused by the effects of Tasers, the company sued.

Taser eventually won, and in May 2008 a judge ordered the medical examiner to delete any references in the autopsy findings that suggested the stun guns were to blame.