A report by the head of a B.C. public inquiry should be overturned because it unfairly concluded tasers can be deadly without first giving the weapon's manufacturer a chance to refute those findings, says a lawyer for Taser International.
The Arizona-based company is challenging the findings of a report released by commissioner Thomas Braidwood last July - the first of two reports stemming from the death of Robert Dziekanski - that concluded tasers can kill and recommended restrictions on their use.
Taser's lawyer, David Neave, told the B.C. Supreme Court on Monday that Mr. Braidwood owed the company a chance to review the report before it was released to the public so it could respond to those findings, especially given their potential impact to Taser's reputation.
Mr. Neave also insisted Braidwood heard nothing during several weeks of hearings in 2008 to support the conclusion that tasers can cause serious injury or death.
"On one side of the fairness coin, there's a duty from the commission to Taser," Mr. Neave said. "The other side of that coin is a legal right to procedural fairness to Taser. The findings that a taser can cause death are unreasonable. The findings are not supported by the evidence that was known to the commissioner."
In fact, Mr. Neave argued that Mr. Braidwood heard a significant amount of evidence that showed the opposite - that there is no evidence tasers can adversely affect the human heart.
Mr. Neave complained that Mr. Braidwood's report only mentions about a third of the 174 reports that Taser provided to the commission.
The report followed the first phase of a public inquiry after Mr. Dziekanski's death at Vancouver's airport in October, 2007, when he was confronted by four RCMP officers and repeatedly stunned with a taser.
While Mr. Braidwood said there wasn't enough medical evidence on the precise risk of an electrical shock from a taser, he said there was sufficient evidence to conclude the weapons have the capacity to affect the heart and cause a fatal arrhythmia. He also questioned some of the studies and statistics provided by Taser, saying its methodology and results were insufficient to support the company's claims that the weapons can't affect the heart.
Mr. Neave told court on Monday that Mr. Braidwood's report has hurt the company's business around the world. He referred to an affidavit from co-founder Thomas Smith, who said the report caused customers to question the safety of tasers and scuttled a multimillion-dollar contract in Africa earlier this year.
"Clearly there has been a negative impact from the decisions in the report," Mr. Neave said. "There has been an economic backlash."
Earlier this year, the provincial government asked the court to throw out Taser's petition, arguing the company had no right to challenge Mr. Braidwood's report. Judge Robert Sewell allowed the case to proceed, but forced Taser to remove allegations of bias against the commission's lead lawyer and its medical adviser.
Lawyers for the province's attorney-general are expected to present their arguments as soon as Tuesday.
Court documents filed by the province argue study commissions such as Mr. Braidwood's aren't subject to judicial review because their role is merely advisory, the recommendations aren't binding and the company has failed to prove Mr. Braidwood disregarded any relevant facts.
The province also says the commission gave Taser extensive participation, even though it wasn't legally required to do so.
Mr. Braidwood was asked about Taser's legal challenge last month as he released his second report, which dealt with Mr. Dziekanski's death in detail.
"I certainly read all their material, I read everything," he said. "It doesn't mean to say I'm going to put it all in a report. Let me just say I disagree with them."
Taser has a history of successfully defending its weapons in court against any claims they can cause or contribute to someone's death.
For example, when an Ohio medical examiner ruled that three men's deaths were in part caused by the effects of tasers, the company convinced a judge that any suggestion the taser was to blame should be removed from the autopsy findings.