The judge overseeing Taser International's challenge of a B.C. public inquiry that concluded the weapons can kill wondered Tuesday why Taser's extensive involvement in the hearings wasn't enough to defend the stun gun.
The U.S.-based weapons manufacturer is challenging the first report into the death of Robert Dziekanski, arguing it was unfair for commissioner Thomas Braidwood to release his findings without first letting Taser know about his conclusions and allowing the company to respond.
On Tuesday, B.C. Supreme Court Justice 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 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," Mr. Justice 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 could not 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."
The 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 with a Taser.
Commissioner Thomas 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, and he called for restrictions on their use.
He also raised questions about the methodology and reliability of some of the studies and statistics provided by Taser as the company argued the weapons pose no risk to the heart.
Taser's petition argues Mr. Braidwood made his conclusion without any evidence to support it and the company claims Mr. Braidwood failed to take into account all of the studies and material it provided.
The company also complains it wasn't granted official standing at the hearings and it wasn't allowed to review the findings before they were released.
The provincial government's lawyers are expected to argue the court has no jurisdiction to review Mr. Braidwood's report because a study commission can only make non-binding recommendations and it can't allege fault or wrongdoing.
They will also say Mr. Braidwood read all of the company's submissions, even if he didn't cite them all.
The provincial government and the RCMP quickly endorsed Mr. Braidwood's report and have since restricted the use of Tasers.
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.
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