Report finding Tasers can kill will stand, judge rules

August 10, 2010
CTV/The Canadian Press

VANCOUVER — A judge has refused to quash an inquiry report that concluded Tasers are capable of causing death.

The maker of the conducted energy weapon had gone to court asking a judge to void the findings of the inquiry, which looked into the events surrounding the death of Robert Dziekanski.

But in a ruling released Tuesday, B.C. Supreme Court Justice Robert Sewell rejected Taser's request, saying the company's arguments hold "no merit."

Sewell said it's clear to him that the inquiry's commissioner, retired justice Thomas Braidwood, had carefully looked at the opinions of medical experts and his findings were reasonable.

"The petitioner's alternative argument before me was that the Study Commission Report's conclusion that conducted energy weapons have the capacity to cause death was patently unreasonable and unsupported by any credible evidence," Sewell said in the written ruling.

"I find no merit in this submission. It is quite clear to me that there were presentations made to the commissioner by medical experts and others to the effect that such weapons can cause serious harm and even death in exceptional circumstances."

Sewell also notes there is nothing in Braidwood's report "which a fair-minded person would construe as an attack or criticism of the petitioner's reputation."

Braidwood released a report on the weapons last year after the first of two sets of hearings following Dziekanski's death at Vancouver airport in October 2007. Dziekanski was repeatedly jolted with an RCMP Taser.

Braidwood concluded Tasers have the capacity to affect the heart and trigger a fatal heart arrhythmia. He said it was difficult to precisely quantify that risk, but he described it as low.

He also said police forces in B.C. should continue to have access to the weapon, but he said the benefits must be weighed against the risks and he called for restrictions on their use.

His recommendations were endorsed by the B.C. government and the RCMP.

Arizona-based Taser, which has a long history of litigation against any suggestion the stun guns are unsafe, said Braidwood treated the company unfairly and then reached conclusions that weren't supported by the facts.

Taser asked the court to throw out all of Braidwood's findings about safety and his subsequent recommendations, claiming he ignored dozens of medical studies provided by the company.

Braidwood said Tuesday he's pleased with the ruling.

"I read all the material carefully, as did my staff, and it was subject to discussion amongst us," he said in the interview.

"We feel that the conclusions we reached in the report were helpful to the administration of the conduct of the police."

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

A B.C. government lawyer said during the proceedings that Taser failed to prove Braidwood ignored any of the company's evidence and its participation was over and above what it was entitled to.

Sewell agreed.

"I can find nothing in the record which would suggest that the commissioner carried out the inquiry, the public forums and his investigation in a manner which was in any way inconsistent with his publicly stated intentions," he said in the ruling.

"In particular, it would appear that the commissioner gave the petitioner (Taser) every opportunity to bring forward all information, scientific studies and other material that the petitioner considered to be relevant and of importance to the commissioner's mandate."

Government lawyers also argued in court that a training document that was issued by Taser several months after Braidwood's report endorsed the inquiry's findings.

That document warned police officers to aim their stun guns away from the heart.

Taser said the training bulletin was only issued to protect the company from potential lawsuits and was not an admission the weapons are dangerous.

The bulletin warned of "a remote potential risk of cardiac effect."

One of the two brothers who founded the weapons manufacturer said in a court affidavit the training bulletin had been taken out of context.

"Taser has not and does not accept that the decisions in the report are supported by any medical evidence," Rick Smith said in the affidavit.

Instead, Smith said he told his staff to refer to "low," "extremely low" or "extremely unlikely" risks because he believed Braidwood's report opened the company up to new legal risks.

The province's lawyers suggested the document showed Taser already knew the weapons carry a small risk of death, but would rather keep that fact in the "fine print" of an obscure product warning rather than in the highly publicized findings of a public inquiry.

Taser's history of aggressively defending its weapons in court is well-documented.

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.

Braidwood's second report, examining Dziekanski's death in detail, was released in June.

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.

The RCMP publicly apologized to his mother and reached a confidential settlement that averted a civil case.