Taser International challenge should be dismissed, B.C. government argues

April 12, 2010
The Canadian Press/Globe and Mail

The company that manufactures Tasers has no more right to dictate regulations for their use than cigarette makers do over second-hand smoke regulations, says the B.C. government.

But Craig Jones, a lawyer for the province, told a B.C. Supreme Court justice Monday that if the company is successful with its application to quash the findings of a public inquiry, it would be akin to giving Taser International that power.

The province is asking the court to toss Taser's court action against a report prompted by the death of Robert Dziekanski at Vancouver's airport.

The report released last year after the first phase of the inquiry by former judge Thomas Braidwood found that shock weapons pose a risk of serious injury or death.

It set out recommendations for their use and cautioned against multiple stuns. Both the B.C. Solicitor General and the RCMP endorsed the recommendations.

But the Arizona-based weapons manufacturer alleges bias and even dishonesty on the part of some witnesses led to that conclusion.

Mr. Jones told Justice Robert Sewell that under the law, the commissioner was not allowed to make findings of misconduct in that first phase of what is a two-phase inquiry. The first phase looked at Taser use in general by law enforcement agencies in British Columbia, while the second examined Dziekanski October 2007 death specifically.

Because the commissioner did not make any finding of misconduct, the manufacturer has no right to the court action, he said.

“Taser's assertion of harm to its reputation remains without any evidence whatsoever,” Mr. Jones said.

Mr. Jones said the company's main complaint is that it disagrees with the findings.

“It continues to dispute that there is a risk — however small — associated with Taser use,” he said.

Mr. Dziekanski died in October 2007, during a confrontation with RCMP.

Police had been summoned after an agitated Mr. Dziekanski began throwing furniture around, and within seconds of the four officers' arrival, he had been jolted several times with a Taser.

The would-be migrant from Poland died on the floor of the airport.

David Neave, the lawyer for Taser, said the commission findings clearly affect the reputation and commercial interests of Taser. The company had the right to reply before the findings were released but was not given the chance, he said. “There was a high degree of procedural fairness owed to Taser in the circumstances,” Mr. Neave told the court. “There's simply no doubt this commission is exclusively focused on my client and the safety and efficacy of the Taser.”

Taser CEO Rick Smith did testify in front of the commission but the company was given no opportunity to react to the report's findings. “The right to procedural fairness was breached,” Mr. Neave said.

But the province said a successful court challenge by Taser would undermine the regulations the government routinely puts in place on product use, citing Health Canada regulations to limit second-hand smoke in the work place.

“Could the tobacco companies who disagree with the government about the risks of second-hand smoke really have the right of (a stay) with respect to Health Canada studies?” Mr. Jones asked.

He said there would be no end to court applications by manufacturers if that were allowed.

He called Taser's application to have the findings quashed both “offensive and abusive.”

The company's allegation of dishonesty focuses on Dr. Keith Chambers, a physician who helped the commissioner interpret much of the medical information submitted as evidence. Chambers' lawyer, John Hunter, told the court that the company's application is “pure intimidation” and an attempt by Taser to silence to anyone willing to stand up to them.

Taser has a history of aggressive legal action in defending its products and last year boasted that it had won it's 100th dismissal of a liability lawsuit.

The report from the second phase of the inquiry hasn't been released, but is expected to be out by this summer.