Inquiry only confirmed Taser's own warnings about weapon's risk, British Columbia argues

July 7, 2010
James Keller, Vancouver — The Canadian Press
The Globe and Mail

A public inquiry report that concluded a Taser jolt carries a small risk of death is entirely supported by the evidence and is actually confirmed by the “fine print” the company now attaches to its weapons, the B.C. government argued Tuesday as it defended the inquiry's findings in court.

Taser International is challenging the first report into the death of Robert Dziekanski, arguing commissioner Thomas Braidwood treated the company unfairly and then reached conclusions that weren't supported by the facts.

But a lawyer for B.C.’s attorney-general told a judge Tuesday the conclusion that a shock from a Taser has the capacity to affect the heart is confirmed by a training bulletin issued by the company last September — two months after the report's release.

The document, which received wide media coverage and prompted police forces across Canada to adjust their policies, recommended the devices be aimed away from the heart to “avoid the remote potential risk of cardiac effect.”

“This is what Taser says in the fine print,” B.C. government lawyer Craig Jones told a B.C. Supreme Court judge.

“And I'll show you that it's virtually identical to what commissioner Braidwood said. The difference is that commissioner Braidwood said it in plain spoken language and broadcast [it] more loudly.”

Mr. Braidwood's report, released last year, was the first of two from a public inquiry called after Mr. Dziekanski's death in October 2007, when he was confronted by RCMP officers at Vancouver's airport and stunned several times with a Taser.

Mr. Braidwood heard presentations in 2008 during several weeks of hearings examining the use of Tasers in B.C. and their safety.

In the end, he concluded a jolt from a Taser has the capacity to kill a person by causing a fatal heart arrhythmia, particularly when the weapon is used multiple times.

The report prompted Taser to ask a court to throw out all of Mr. Braidwood's findings about the safety of the stun guns and his subsequent recommendations, claiming the retired judge ignored dozens of medical studies provided by the company.

Taser also argues it should have had greater participation in the hearings and had a chance to review Mr. Braidwood's findings and respond before they were made public.

On Tuesday, Mr. Jones only spent a few minutes speaking to the judge before court finished for the day, but in written submissions, he rejected all of Taser's arguments.

Taser failed to prove Mr. Braidwood ignored any of the company's evidence, wrote Mr. Jones, and Taser's extensive participation was over and above what it was entitled to.

“The courtesies and accommodations extended to Taser — which was, in sheer volume of submissions, easily the most-prominent presenter — were extraordinary,” wrote Mr. Jones .

“For Taser to now [claim it wasn't afforded enough rights] seems not only wildly inappropriate legally speaking, but also incongruous with all the facts Taser itself asserts.”

Earlier in the day, the judge in the case asked Taser why its extensive involvement in the hearings wasn't enough to defend the stun gun.

Judge Robert Sewell noted the company's co-founder and several of its own experts appeared before the hearings in 2008, and they would have known other presenters had told Mr. Braidwood that Tasers pose safety risks.

“The petitioner in this case was well aware that one of the subject matters of the inquiry was the safety of Tasers, and, in fact, the petitioner in this case was given ample opportunity to appear before the commission and make submissions with respect to that question,” Judge Sewell told Taser lawyer David Neave.

“Wasn't he [Taser co-founder Thomas Smith] aware that presenters had made presentations to the commissioner that there was some indication [that Tasers could cause death]?”

The company couldn't have predicted Mr. Braidwood would conclude Tasers could be fatal because, Mr. Neave replied, none of the evidence presented at the inquiry supported that finding.

“Taser had no basis to believe that the commissioner would reach those findings,” said Mr. Neave. “Taser was entitled to notice.”

Taser claims the report has hurt its business around the world, citing it as the reason the company lost a multimillion-dollar contract in Africa earlier this year.

Mr. Braidwood's second report, examining Mr. Dziekanski's death in detail, was released last month.

That document chided the four RCMP officers involved in the man's death for using too much force and concluded the multiple Taser stuns likely played the greatest role in his death.