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Monday, April 12, 2010

Taser International tried to intimidate consultants, lawyers say

April 12, 2010
Jeff Lee, Vancouver Sun

Company launched a 'scurrilous attack' to discredit professionals by saying they are guilty of bias and dishonesty, judge told

Taser International was accused Monday of trying to intimidate consultants and lawyers hired by the Thomas Braidwood commission, which looked into how conducted-energy weapons should be used in B.C.

The company launched a "scurrilous attack" on two respected professionals involved in the inquiry, accusing both of bias and one of dishonesty, as part of an aggressive ploy to intimidate anyone who questions the safety and efficacy of Tasers, a B.C. Supreme Court judge was told.

Lawyers for the provincial government and the two men made the accusations in court as they sought to dismiss Taser's application for a judicial review of Braidwood's report into the use of Tasers in B.C.

But the company, whose weapons are widely used by police departments, prisons and security forces around the world, says it is only arguing that it wasn't given fair warning to respond to any adverse findings the Braidwood inquiry might make and that his findings harm its reputation.

In its application, Taser argued the study commission's process was flawed and that scientific and professional studies it provided to the commission were not included when Braidwood issued his final report, Restoring Public Confidence -- Restricting the Use of Conducted Energy Weapons in British Columbia last year.

But Craig Jones, a lawyer for the Attorney-General's Ministry, said Taser is trying to dictate matters simply because it doesn't like Braidwood's findings.

"It continues to dispute that there is a risk, however small, associated with Taser use," he said. "Taser's assertion of harm to its reputation remains without any evidence whatsoever."

Braidwood was appointed by the government in 2008 to conduct two commissions: the first, a study commission, looked only into how Tasers and other conducted-energy weapons are used. The second was a formal hearing of inquiry into the circumstances around the death of Robert Dziekanski at Vancouver International Airport on Oct. 14, 2007 after he was repeatedly shocked by a Taser wielded by an RCMP officer.

Braidwood issued the study commission's findings on June 18, 2009. His report on the inquiry is expected in June or July.

Taser has asked for a number of declarations, including the quashing of several sections of Braidwood's first report where he concluded that conductedenergy weapons, in some circumstances, could cause death or severe injury. It also asked for declarations that Art Vertlieb, the commission's counsel, and Dr. Keith Chambers, a medical consultant, were guilty of "dereliction of duty" that led to a "reasonable apprehension of bias" against Taser. They also alleged that Chambers was guilty of "dereliction of duty to be honest."

Those words angered the lawyers for the two men. They charged that Taser was trying to intimidate the commission as a way of discouraging future witnesses or consultants in cases against the maker of the conducted-energy weapon.

"This is pure intimidation. This is an attempt by a large company that manufactures these weapons to try and silence anybody who would speak out against them by suing them in a manner that cannot possibly succeed," John Hunter, the lawyer for Chambers, told Justice Robert Sewell.

"In my submission, that is an improper purpose and should be subject to being visited with the chastisement of special costs by this court."

Both Hunter and Thomas Berger, who is representing Vertlieb, told the judge Taser's unfounded allegations against their clients -- in which the company offered no evidence -- were so outrageous that he should also award special court costs.

"This case is the very definition of abuse of process," Berger told the judge.

Jones said the two men only provided assistance in collecting or collating documents for Braidwood and made no submissions or findings themselves. As such, the two men didn't do anything wrong, he said.

Taser International is known for aggressively challenging anyone who says its weapons can cause death. It argues its guns, which deliver a high-voltage shock to incapacitate the victims, are a safer alternative to deadly use of force by police.

But in recent years the company has come under scrutiny for a rash of deaths at the hands of officers deploying Tasers, sometimes operated in multiples. Taser worries that having its weapons declared killers would likely damage its sales.

The case, in which Sewell reserved judgment, hangs on different interpretations of whether Braidwood's study commission is subject to judicial review.

Jones argued that the first commission is not subject to the Judicial Review Procedure Act. In a strongly worded argument, he said Taser is seeking to confuse Braidwood's study commission with the second hearing he conducted into the death of Dziekanski.

The differences between those two commissions is substantive, Jones argued, because in the first one Braidwood did not have the power to find fault or to hear submissions under oath. For that reason it isn't subject to judicial review, he said, noting that Braidwood made no findings of fault and did not hear witnesses under oath.

He also noted that just because Braidwood didn't list Taser's documents in the report doesn't mean he didn't consider them. The list was not exhaustive and did not contain every document submitted by everyone, he said.

Taser's lawyer David Neave said the company was denied a right to "procedural fairness" by Braidwood.

"There was a high degree of procedural fairness owed to Taser in the circumstances," he told Sewell. "There's simply no doubt this commission is exclusively focused on my client and the safety and efficacy of the Taser."

He said Taser International president Tom Smith's written offer to provide assistance to the commission went unanswered. Eventually Vertlieb wrote asking for copies of studies and information. Smith made a presentation to Braidwood at a public forum.

But Neave said Braidwood never informed Taser that he might issue findings in the study commission that might adversely affect the company.

"He had a duty to hear what Taser might say about findings he was going to make," Neave said.

Braidwood, Vertlieb and Chambers "were very alive" to the reputational damage that might be done to Taser if adverse findings were made, Neave said.

Braidwood made at least half a dozen references in his report to his belief that conductedenergy weapons could in some cases lead to death or severe injury, and yet the commissioner "gave no notice and no opportunity" to Taser to respond, Neave said.

He said the actions of Vertlieb and Chambers "led the commission into error."

Jones said Taser's arguments are "offensive and abusive" and that if it is successful it would undermine how governments make regulations.

He cited Health Canada's regulations around second-hand smoke. "Could the tobacco companies who disagree with the government about the risks of second-hand smoke really have the right [to dictate government policy] with respect to Health Canada studies?" he asked. If that were so, courts would endlessly deal with applications from companies that disagree with government rules.

He said the Taser also can't cite one case in North America where it has the right to tell governments how to use its weapons. As an example, governments have the right to buy battleships but the manufacturers don't have the right to tell them how to use them, he said.

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