IN THE SUPREME COURT OF BRITISH COLUMBIA
RE: The Judicial Review Procedure Act, R.S.B.C. 1996, c. 1996, c. 241 and the
Public Inquiry Act, S.B.C. 2007, c. 9, and in the matter of the Thomas R.
Braidwood, Q.C., Commissions of Inquiry, Study Commission to Inquire and
Report on the Death of Mr. Robert Dziekanski and said Report and
Recommendations dated 18 June 2009
Citation:

Taser International, Inc. v. British Columbia
(Thomas Braidwood, Q.C. Study Commission),
2010 BCSC 1120
Date: 20100810
Docket: S095931
Registry: Vancouver

Between:
Taser International, Inc.
Petitioner
And
Thomas R. Braidwood, Q.C., Commissioner, Thomas R. Braidwood, QC,
Commissions of Inquiry, Study Commission to Inquire and Report on the
Death of Mr. Robert Dziekanski
Respondent
Before: The Honourable Mr. Justice Sewell
Reasons for Judgment
Counsel for the Petitioner:

Counsel for the Respondent
Thomas R. Braidwood, Q.C.:
Counsel for the Respondent
Attorney General of British Columbia:

David T. Neave -andEleni Kassaris
Arthur Vertlieb, Q.C. -andPatrick McGowan
Craig E. Jones -andKarrie Wolfe

Place and Date of Hearing:

Vancouver, B.C.
July 5-9, 2010

Place and Date of Judgment:

Vancouver, B.C.
August 10, 2010

Taser International, Inc. v. British Columbia (Thomas Braidwood, Q.C.
Study Commission)

Page 2

INTRODUCTION
[1]

On February 15, 2008, the provincial government established two

commissions of inquiry under s. 2 of the Public Inquiry Act, S.B.C. 2007, c. 9, in
response to an incident which led to the death of Robert Dziekanski, who died at the
Vancouver International Airport while being restrained by members of the RCMP. In
the course of their confrontation with Mr. Dziekanski, the RCMP members struck him
several times with conducted energy weapons manufactured by the petitioner. The
Honourable Thomas R. Braidwood, Q.C. (the “Commissioner”) was appointed
Commissioner of both commissions.
[2]

The first commission (the “Study Commission”) was designated as a study

commission to make recommendations regarding the appropriate use of conducted
energy weapons in the province. The second commission was designated as a
hearing and study commission. Its mandate was to inquire into and report on the
death of Mr. Dziekanski.
[3]

The powers of a study commission are found in s. 20 of the Public Inquiry Act:
20 (1) Subject to this Act and the commission's terms of reference, a study
commission may engage in any activity necessary to effectively and
efficiently fulfill the duties of the commission, including doing any of the
following:
(a) conducting research, including interviews and surveys;
(b) consulting with participants, privately or in a manner that is open to
the public, either in person or through broadcast proceedings;
(c) consulting with the public generally and, for that purpose, issuing
directives respecting any of the matters set out in subsection (2).
(2) Without limiting the powers of a commission set out in Division 1, a study
commission may make directives respecting any of the following:
(a) the notification of participants and the public regarding a
consultation under this section;
(b) the holding of public meetings, including the places and times at
which public meetings will be held and the frequency of public
meetings;
(c) the conduct of, and the maintenance of order at, public meetings;
(d) the receipt of oral and written submissions.

Taser International, Inc. v. British Columbia (Thomas Braidwood, Q.C.
Study Commission)

Page 3

(3) A study commission must not exercise the powers of a hearing
commission as set out in sections 21 (1), 22 and 23, unless the study
commission is also designated as a hearing commission.

[4]

The powers of a hearing commission are set out beginning at s. 21 of the

Public Inquiry Act. Section 21 is in the following terms:
21 (1) Subject to this Act and the commission's terms of reference, a hearing
commission may engage in any activity necessary to effectively and
efficiently fulfill the duties of the commission, including doing any of the
following:
(a) issuing directives respecting any of the matters set out in
subsection (2);
(b) holding written, oral and electronic hearings;
(c) receiving submissions and evidence under oath or
affirmation;
(d) making a finding of misconduct against a person, or
making a report that alleges misconduct by a person.
(2) Without limiting the powers of a commission set out in Division 1, a
hearing commission may make directives respecting any of the following:
(a) the holding of pre-hearing conferences, including
confidential pre-hearing conferences, and the requiring of one
or more participants to attend a pre-hearing conference;
(b) procedures for preliminary or interim matters;
(c) the receipt and disclosure of information, including but not
limited to pre-hearing receipt and disclosure and pre-hearing
examination of a participant or witness on oath, on affirmation
or by affidavit;
(d) the exchange of records by participants;
(e) the filing of admissions and written submissions by
participants;
(f) the service and filing of notices, records and orders,
including substituted service and the requiring of participants
to provide an address for service;
(g) without limiting any other power of the commission, the
effect of a participant's non-compliance with the commission's
directives.
(3) A hearing commission must not exercise the powers of a study
commission as set out in section 20 (1), unless the hearing commission is
also designated as a study commission.

Taser International, Inc. v. British Columbia (Thomas Braidwood, Q.C.
Study Commission)
[5]

Page 4

The Order-In-Council establishing the commissions provided in part as

follows:
Establishment of two commissions
2(1) A study commission, called the Thomas R. Braidwood, Q.C., Study
Commission, is established under section 2 of the Public Inquiry Act to
inquire into and report on the use of conducted energy weapons by the
following in the performance of their duties and the exercise of their powers:
(a) constables of police forces of British Columbia, other than the
RCMP;
(b) sheriffs under the Sheriff Act;
(c) authorized persons under the Correction Act.
(2) A hearing and study commission, called the Thomas R. Braidwood, Q.C.,
Hearing and Study Commission, is established under section 2 of the Public
Inquiry Act to inquire into and report on the death of Mr. Dziekanski.
(3) Thomas R. Braidwood, Q.C., is the sole commissioner of each of the
commissions established under this section.

[6]

In this proceeding the petitioner seeks judicial review of the report of the

Study Commission, entitled “Restoring Public Confidence: Restricting the Use of
Conducted Energy Weapons in British Columbia” (the “Study Commission Report”),
issued on June 18, 2009. I note that the style of cause in the petition misdescribed
the Study Commission but no one made any objection to the style of cause and it is
obvious that the subject matter of the proceeding is the Study Commission Report.
Specifically, the petitioner seeks an order quashing all findings of the Commissioner
in respect of the safety of conducted energy weapons, an order quashing Parts 9
and 10 of the Study Commission Report, and the following declarations and
injunction:
...
3.
a declaration that the Respondent failed to take relevant information into
account in preparing Parts 9 and 10 of his Report and the recommendations
therein, contrary to the principles of natural justice;
...
8.
a declaration that the Respondent fell into jurisdictional error given there
is no reasonable basis in the material available to the Respondent to justify
his findings in Part 9 of the Report;
9. a declaration that, contrary to the principles of natural justice, the.
Respondent failed to give the Petitioner notice of or an opportunity to be

Taser International, Inc. v. British Columbia (Thomas Braidwood, Q.C.
Study Commission)

Page 5

heard in respect of the Respondent’s intention to make findings as to the
causative or contributive role of the Petitioner’s products in injury or death;
10. a declaration that the Respondent has legal duties to give TASER
notice of the Commission’s potential findings in advance to the extent they
may affect TASER’s interests and to give TASER the opportunity to be heard
in respect of those potential findings;
11. a declaration that the Respondent did not satisfy his legal duties to give
TASER notice and the opportunity to be heard concerning findings adverse to
TASER’s interests in respect of the Report;
12. an injunction restraining the Respondent from relying on his research
and findings as to medical safety or risk in relation to a conducted energy
weapons in the Report in his deliberations, report and findings for the
Thomas R. Braidwood, Q.C., Hearing and Study Commission (“Hearing
Commission”).

[7]

The Attorney General was served with the petition and appears as of right

pursuant to section 16 of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241
(the “JRPA”).
[8]

In Part 9 of the Study Commission Report, the Commissioner concluded that

there was some risk of death or serious injury associated with the use of conducted
energy weapons which required a risk benefit analysis of their use and deployment.
[9]

In Part 10, the Commissioner set out his recommendations for rules

governing the threshold for conducted energy weapon use, multiple deployments,
other precautionary measures, training, and testing. The recommendations were all
adopted by the Solicitor General for provincially constituted municipal forces, sheriffs
and corrections officials, and have since also been endorsed by the RCMP in British
Columbia.
IS THE STUDY COMMISSION REPORT SUBJECT TO JUDICIAL REVIEW?
[10]

Throughout these proceedings the Attorney General’s position has been that

study commissions are not subject to judicial review and that the petitioner has no
standing to bring the petition and had no procedural rights with respect to the
manner in which the Study Commission was conducted.

Taser International, Inc. v. British Columbia (Thomas Braidwood, Q.C.
Study Commission)
[11]

Page 6

On this issue, the Attorney General’s submissions are that a study

commission appointed pursuant to the provisions of the Public Inquiry Act acts in a
purely administrative and advisory capacity. The Court should not interfere with or
attempt to exercise any supervisory control over study commissions because such
commissions are by their very nature inappropriate for judicial intervention. The
Attorney General also submits that imposing an obligation to observe the rules of
natural justice and fairness upon study commissions carries with it the risk of
frustrating the very purpose and function of such commissions by inhibiting their
ability to assess independently the matters before them.
[12]

Section 2 of the JRPA provides as follows:
Application for judicial review
2 (1) An application for judicial review is an originating application and must
be brought by petition.
(2) On an application for judicial review, the court may grant any relief that the
applicant would be entitled to in any one or more of the proceedings for:
(a) relief in the nature of mandamus, prohibition or certiorari;
(b) a declaration or injunction, or both, in relation to the exercise,
refusal to exercise, or proposed or purported exercise, of a statutory
power.

[13]

“Statutory power of decision” and “statutory power” are defined in s. 1 of the

JRPA as follows:
"statutory power of decision" means a power or right conferred by an
enactment to make a decision deciding or prescribing
(a) the legal rights, powers, privileges, immunities, duties or liabilities
of a person, or
(b) the eligibility of a person to receive, or to continue to receive, a
benefit or licence, whether or not the person is legally entitled to it,
and includes the powers of the Provincial Court;
"statutory power" means a power or right conferred by an enactment
(a) to make a regulation, rule, bylaw or order,
(b) to exercise a statutory power of decision,
(c) to require a person to do or to refrain from doing an act or thing
that, but for that requirement, the person would not be required by law
to do or to refrain from doing,

Taser International, Inc. v. British Columbia (Thomas Braidwood, Q.C.
Study Commission)

Page 7

(d) to do an act or thing that would, but for that power or right, be a
breach of a legal right of any person, or
(e) to make an investigation or inquiry into a person's legal right,
power, privilege, immunity, duty or liability;

[14]

For the Attorney General, Mr. Jones submits that the relief sought in this case

does not relate to the exercise, refusal to exercise, or proposed or purported
exercise of a statutory power because the Study Commission Report does not
constitute an exercise of a statutory power. He submits that study commissions
perform a purely advisory function and cannot speak to any person’s rights, duties or
liabilities. He relies on ss. 20 and 21 of the Public Inquiry Act, quoted above at
paragraphs 3 and 4.
[15]

Mr. Jones contrasted the provisions relating to study commissions found in s.

20 of the Public Inquiry Act with the provisions which set out the powers and
procedures of a hearing commission. His submission is that judicial review is
appropriate only with respect to the conduct and reports of hearing commissions
because only hearing commissions can be said to be acting in a quasi-judicial
capacity or exercising any of the functions addressed in s. 2 of the JRPA.
[16]

The Attorney General does concede that there is authority for the proposition

that some commission reports which contain recommendations only are subject to
review by way of certiorari. However, he submits that certiorari is only available in
relation to commissions exercising advisory or administrative functions where there
is a close proximity between the function and the final disposition of a person’s
rights. He submits that that proximity can only be found in cases in which the advice
or recommendations of a commission are likely to be acted upon to the detriment of
a person’s legal rights.
[17]

The Attorney General submits that the Study Commission was doing nothing

more than making policy recommendations, which by their very nature are not
subject to judicial review. He further submits that the petitioner does not have
standing because the Study Commission Report has not affected its legal rights,
powers, privileges, immunities, duties or liabilities. He relies on the Supreme Court

Taser International, Inc. v. British Columbia (Thomas Braidwood, Q.C.
Study Commission)

Page 8

of Canada decision of Canada (Minister of National Revenue) v. Coopers and
Lybrand, [1979] 1 S.C.R. 495 (Coopers and Lybrand).
[18]

The petitioner relies upon a number of authorities beginning with Martineau v.

Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; 1979 CarswellNat 2
(Martineau), in support of the proposition that an advisory commission is under a
legal duty to act fairly with respect to those whose interests may be adversely
affected by the commission’s report.
[19]

In Martineau, Mr. Justice Dickson stated at paragraphs 72-74 of the Carswell

Report (628-29, S.C.R.):
The authorities, in my view, support the following conclusions:
1. Certiorari is available as a general remedy for supervision of the
machinery of government decision-making. The order may go to any public
body with power to decide any matter affecting the rights, interests, property,
privileges or liberty of any person. The basis for the broad reach of this
remedy is the general duty of fairness resting on all public decision-makers.
2. A purely ministerial decision, on broad grounds of public policy, will
typically afford the individual no procedural protection, and any attack upon
such a decision will have to be founded upon abuse of discretion. Similarly,
public bodies exercising legislative functions may not be amenable to judicial
supervision. On the other hand, a function that approaches the judicial end of
the spectrum will entail substantial procedural safeguards. Between the
judicial decisions and those which are discretionary and policy-oriented will
be found a myriad of decision-making processes with a flexible gradation of
procedural fairness through the administrative spectrum. That is what
emerges from the decision of this Court in Nicholson. In these cases, an
applicant may obtain certiorari to enforce a breach of the duty of procedural
fairness.

[20]

The petitioner relies on the first conclusion stated by Dickson J. in Martineau.

It submits that its interests have been affected in a fundamental way by the Study
Commission Report. The interests identified by the petitioner are the commercial
interests associated with selling its products. The petitioner says that those interests
are sufficient to make the Study Commission subject to judicial review.
[21]

There is little guidance in the authorities as to what constitutes an interest

sufficient to give an applicant standing to seek judicial review and impose the

Taser International, Inc. v. British Columbia (Thomas Braidwood, Q.C.
Study Commission)

Page 9

correlative duty of fairness on a purely advisory tribunal with respect to the applicant.
In most of the cases in which the Courts have granted a remedy the decision of the
tribunal has uniquely affected the reputation, status or liberty of the applicant.
[22]

In Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of

Police, [1979] 1 S.C.R. 311 at 327-28(Nicholson), the Court referred to Selvarajan v.
Race Relations Board, [1976] 1 All E.R. 13, as follows:
A more recent illustration of a court considering a duty to act fairly is
Selvarajan v. Race Relations Board, [1976] 1 All E.R. 13, where the Court of
Appeal was satisfied that the Board, and administrative agency with no
judicial functions, concerned primarily with conciliation in relation to its duty to
investigate complaints of unlawful discrimination and to form an opinion
thereon, had acted fairly in concluding after a review of the evidence that
there was no such discrimination. Lord Denning had this to say about the
duty to act fairly (at p. 19):
...In recent years we have had to consider the procedure
of many bodies who are required to make an investigation and
form an opinion. Notably the Gaming Board, who have to
enquire whether an applicant is fit to run a gaming club (see R.
v. Gaming Board for Great Britain, ex parte Benaim, [1970] 2
All ER 528), and inspectors under the Companies Acts, who
have to investigate the affairs of a company and make a report
(see Re Pergamon Press Ltd., [1970] 3 All ER 535), and the
tribunal appointed under s. 463 of the Income and Corporation
Taxes Act 1970, who have to determine whether there is a
prima facie case (see Wiseman v. Borneman, [1971] AC 297).
In all these cases it has been held that the investigating body
is under a duty to act fairly; but that which fairness requires
depends on the nature of the investigation and the
consequences which it may have on persons affected by it.
The fundamental rule is that, if a person may be subjected to
pains or penalties, or be exposed to prosecution or
proceedings, or deprived of remedies or redress, or in some
such way adversely affected by the investigation and report,
then he should be told the case made against him and be
afforded a fair opportunity of answering it. The investigating
body is, however, the master of its own procedure. It need not
hold a hearing. It can do everything in writing. It need not allow
lawyers. It need not put every detail of the case against a man.
Suffice it if the broad grounds are given. It need not name its
informants. It can give the substance only. Moreover it need
not do everything itself. It can employ secretaries and
assistants to do all the preliminary work and leave much to
them. But, in the end, the investigating body itself must come
to its own decision and make its own report.

Taser International, Inc. v. British Columbia (Thomas Braidwood, Q.C.
Study Commission)
Page 10
[23]

Mr. Justice Dickson continued his reasons at page 328 of Nicholson as

follows:
In my opinion, the appellant should have been told why his services were no
longer required and given an opportunity, whether orally or in writing as the
Board might determine, to respond. The Board itself, I would think, would
wish to be certain that it had not made a mistake in some fact or
circumstance which it deemed relevant to its determination. Once it had the
appellant's response, it would be for the Board to decide on what action to
take, without its decision being reviewable elsewhere, always premising good
faith. Such a course provides fairness to the appellant, and it is fair as well to
the Board's right, as a public authority to decide, once it had the appellant's
response, whether a person in his position should be allowed to continue in
office to the point where his right to procedural protection was enlarged.
Status in office deserves this minimal protection, however brief the period for
which the office is held.

[24]

My review of the authorities leads me to the conclusion that the courts have

readily found a duty to act fairly on the part of investigatory or inquiry tribunals and
have focused their analysis on the nature and extent of the duty rather than on
whether any such duty exists. As the above passages illustrate, at its most basic the
duty of fairness requires that an affected person have notice of the issues being
considered by the inquiry that affect his or her interests and that the applicant be
given a reasonable opportunity to be heard with respect to those issues.
[25]

It seems to me that the second conclusion Mr. Justice Dickson reached in

Martineau supports the proposition that the determination of the nature, extent and
content of the duty of fairness owed in any particular situation must be assessed
with respect to the particular facts and circumstances of the decision which is sought
to be reviewed.
[26]

The authority for granting the declaratory and injunctive relief sought by the

petitioner is found in s. 2(2)(b) of the JRPA. This Court has an inherent common law
jurisdiction to grant certiorari.
[27]

I considered the issue of whether declaratory relief and injunctive relief are

available with respect to the Study Commission Report on an earlier application by
the respondent Attorney General to have the petition dismissed under Rule 19(24)

Taser International, Inc. v. British Columbia (Thomas Braidwood, Q.C.
Study Commission)
Page 11
as disclosing no reasonable cause of action. My reasons addressing that
application are indexed as 2010 BCSC 623. At that time extensive submissions
were made, which were not repeated in any detail on the application to which these
reasons apply.
[28]

Based on my reading of the provisions of the JRPA, I have great difficulty in

understanding how s. 2(2)(b) is applicable to the Study Commission Report. The
Court has power to grant a declaration or an injunction only with respect to the
exercise of a statutory power. It does not appear to me that any of the definitions of
statutory power set out in the JRPA apply to the Study Commission Report. The
mandate of the Study Commission was to make recommendations to the
government with respect to the appropriate use of conducted energy weapons, the
appropriate training or retraining of peace officers using conducted energy weapons
and to review research studies, reports and evaluations respecting the safety and
effectiveness of conducted energy weapons when used in policing.
[29]

In my view, none of the terms of reference of the Study Commission, and in

particular the mandate to review research studies, reports and evaluations
respecting the safety and effectiveness of conducted energy weapons constituted
the exercise of a statutory power of decision. I therefore can see no basis on which
this Court has jurisdiction to grant a declaration or injunction with respect to the
Study Commission Report.
[30]

This does not, however, mean the Commission is not subject to the

supervision of the Court pursuant to the prerogative writ of certiorari. The
circumstances in which the Court will exercise supervision over an administrative
tribunal through its power to grant certiorari are significantly broader than the
statutory jurisdiction to grant a declaration or injunction. This is the essential
distinction between the Supreme Court of Canada decisions in Coopers and
Lybrand and Martineau.

Taser International, Inc. v. British Columbia (Thomas Braidwood, Q.C.
Study Commission)
Page 12
[31]

In Martineau, the Court held that the nature of the administrative action was

such as to impose a duty to act fairly that the Court has jurisdiction to enforce by
certiorari.
[32]

In Martineau, the applicants were inmates who faced a prolonged period of

segregation. The petitioner’s complainants in this matter relate to the
Commissioner’s conclusion with respect to the attributes of the product it
manufactures and sells. It seems to me that the effective administration of
government may well be severely hampered if the government’s review and analysis
of the attributes of a particular product were subject to judicial review on the grounds
of fairness. I therefore think that if a duty of fairness is to be found in a case where a
government agency is reviewing the attributes of a particular product or substance
there must be special circumstances which give rise to that duty.
[33]

In this case I have concluded that there are such special circumstances. I

reach this conclusion because it is common ground and obvious that the mandate of
the Study Commission was to inquire into the conducted energy weapons
manufactured by the petitioner. The terms of reference of the Study Commission
were as follows:
Terms of reference
4 (1) The terms of reference of the inquiries to be conducted by the study
commission established under section 2 (1) are as follows:
(a) to review current rules, policies and procedures applicable to
constables, sheriffs and authorized persons referred to in section 2 (1)
in respect of their use of conducted energy weapons and their training
and re-training in that use;
(b) to review research, studies, reports and evaluations respecting the
safety and effectiveness of conducted energy weapons when used in
policing and law enforcement in British Columbia and in other
jurisdictions;
(c) to make recommendations respecting
(i) the appropriate use of conducted energy weapons by
constables, sheriffs and authorized persons referred to in
section 2 (1) in the performance of their duties and the
exercise of their powers, and

Taser International, Inc. v. British Columbia (Thomas Braidwood, Q.C.
Study Commission)
Page 13
(ii) the appropriate training or re-training of those constables,
sheriffs and authorized persons in that use of conducted
energy weapons;
(d) to submit a report to the Attorney General on or before June 30,
2008.

[34]

It is also quite clear that the Commissioner invited the petitioner to participate

in the process of the Study Commission. In my view a company in the position of
the petitioner would reasonably expect that it would be treated fairly by the Study
Commission in view of the above circumstances. I therefore conclude that in the
special circumstances of this case, the Study Commission did owe a duty of fairness
to the petitioner.
[35]

Having decided that the Study Commission owed the petitioner a duty of

fairness, I must consider the nature and extent of that duty. In Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker), Madam
Justice L’Heureux-Dubé stated the following at paras. 21-22:
21 The existence of a duty of fairness, however, does not determine what
requirements will be applicable in a given set of circumstances. As I wrote in
Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682,
"the concept of procedural fairness is eminently variable and its content is to
be decided in the specific context of each case". All of the circumstances
must be considered in order to determine the content of the duty of
procedural fairness: Knight, at pp. 682-83; Cardinal, supra, at p. 654; Old St.
Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, per
Sopinka J.
22 Although the duty of fairness is flexible and variable, and depends on an
appreciation of the context of the particular statute and the rights affected, it
is helpful to review the criteria that should be used in determining what
procedural rights the duty of fairness requires in a given set of circumstances.
I emphasize that underlying all these factors is the notion that the purpose of
the participatory rights contained within the duty of procedural fairness is to
ensure that administrative decisions are made using a fair and open
procedure, appropriate to the decision being made and its statutory,
institutional, and social context, with an opportunity for those affected by the
decision to put forward their views and evidence fully and have them
considered by the decision-maker.

[36]

Madam Justice L’Heureux-Dubé went on to enumerate a number of non-

exhaustive factors that a Court should address in determining the content and extent

Taser International, Inc. v. British Columbia (Thomas Braidwood, Q.C.
Study Commission)
Page 14
of a duty of fairness in a particular situation. The factors outlined may be
paraphrased as follows:
(a)

the nature of the decision being made and the process followed in

making it;
(b)

the nature of the statutory scheme and the terms of the statute pursuant

to which the administrative body operates;
(c)

the importance of the decision to the individual or individuals affected;

(d)

the legitimate expectations of the persons challenging the decision; and

(e)

the choices of procedure made by the agency itself particularly when the

statute leaves the decision-maker the ability to chose its own processes.
[37]

The critical question is whether the procedures followed by the tribunal

respected the duty of fairness in that the person affected has had an opportunity to
present its case fairly and fully and that decisions affecting its interests were made
using a fair, impartial and open process appropriate to the context of the decision.
[38]

While the factors expressly set out in Baker are non-exhaustive they do

provide an analytical framework for considering the content of the duty of fairness. I
therefore propose to review each of the factors insofar as they relate to the facts of
this proceeding.
(a) Nature of the decision being made
[39]

In this case the nature of the decision made was purely advisory. The terms

of reference under which the Study Commission operated mandated it to, inter alia,
review research, studies, reports and evaluations respecting the safety and
effectiveness of conducted energy weapons when used in policing and law
enforcement in British Columbia and other jurisdictions. This decision is more
analogous to that described in Coopers and Lybrand, than it is to the decision under
review in Martineau. Given the advisory nature of the decision and the express
mandate of the Study Commission to review research material prepared by others it

Taser International, Inc. v. British Columbia (Thomas Braidwood, Q.C.
Study Commission)
Page 15
seems to me that it would be inappropriate to saddle the Study Commission with an
obligation to act in a judicial or quasi-judicial manner in carrying out its functions.
(b) Statutory terms pursuant to which the Study Commission operates
[40]

In this case the Study Commission is governed by the provisions of the Public

Inquiry Act and in particular is restricted in the exercise of its powers by s. 20 of the
Public Inquiry Act. Section 20(3) of the Public Inquiry Act places significant
limitations on the proceedings of a Study Commission. Those limitations are
consistent with a legislative intention that Study Commissions should not be
expected to act with a high degree of formal procedural fairness.
(c) Importance of the decision to the individual
[41]

In this case I think it is necessary to distinguish between the importance of the

decision to the petitioner’s commercial interests and the importance of the decision
to its reputation and status. In my view, there is nothing in the Study Commission
Report which a fair-minded person would construe as an attack or criticism of the
petitioner’s reputation as a corporate citizen or its right to carry on business and
market its products. It is important to remember that the Commissioner, despite
many submissions made to him, recommended the continued use of conducted
energy weapons and commented favourably on the advantages of using such
weapons in circumstances in which the police would otherwise have been required
to use other means of force.
[42]

I think that courts must proceed with very great caution when assessing

complaints made by the manufacturer of a product about findings made by public
inquiries with respect to the characteristics and potential risks of that product. The
essential mandate of the Study Commission was to conduct a risk benefit analysis
with respect to a particular product. This is a mandate which inherently invokes an
exercise of judgment as opposed to a determination of rights or status.
[43]

Moreover, in this case there is little evidence that the Study Commission

Report had any serious impact on the petitioner’s business. I have not overlooked

Taser International, Inc. v. British Columbia (Thomas Braidwood, Q.C.
Study Commission)
Page 16
the evidence of Mr. Thomas P. Smith, Chairman of the Board of the petitioner. In his
affidavit, Mr. Smith deposes to the fact that the petitioner has had to deal with the
issues raised in the Study Commission Report in “virtually every meeting” he has
had with potential customers and customers since the Study Commission Report
was released. However, I find his evidence to be of little assistance. It consists
essentially of vague, self-serving statements totally lacking in specificity.
[44]

The closest that the petitioner comes to leading evidence of any actual impact

on its sales is in para. 21 of Mr. Smith’s affidavit. However, Mr. Smith’s statements
of belief in para. 21 are not admissible evidence that there has been any actual loss
of sales for the petitioner as a result of the Study Commission Report. I therefore
am unable to conclude that the Study Commission Report has had any serious
impact on the petitioner’s reputational or commercial interests.
(d) Legitimate expectations of the petitioner
[45]

The petitioner has placed considerable reliance on it having a legitimate

expectation that it would be treated fairly by the Study Commission. It relies heavily
in this regard on the statements made by the Commissioner and by Commission
counsel with respect to the manner in which the Study Commission would be
conducted. For example, the petitioner quotes the Commissioner’s opening
statement to the effect that he was determined to make the inquiry’s activities and
process as public and transparent and as accessible as possible. The petitioner
relies on the decision of Justice Teitelbaum in Chrétien v. Canada (ExCommissioner, Commission of Inquiry into the Sponsorship Program and
Advertising Activities), 2008 FC 802, [2009] 2 F.C.R. 417, with respect to the
importance of a commission adhering to its own stated procedural standards in the
conduct of its hearings. These considerations support a finding that the Commission
did owe a duty to act with substantial fairness to the petitioner.
[46]

These considerations apply also to the final factor set out in Baker, that is the

choice of procedures made by the agency itself.

Taser International, Inc. v. British Columbia (Thomas Braidwood, Q.C.
Study Commission)
Page 17
DID THE STUDY COMMISSION DISCHARGE ITS DUTY TO ACT FAIRLY?
[47]

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. In particular it would
appear that the Commissioner gave the petitioner 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. In giving the
petitioner an opportunity to be heard, the Commissioner was of course
circumscribed by the statutory provisions of ss. 20 and 21 of the Public Inquiry Act.
In particular the Commissioner was precluded by s. 20(3) of the Public Inquiry Act
from conducting the inquiry in a judicial or quasi-judicial manner.
[48]

Based on the evidence and submissions that I have heard, I have concluded

that the Study Commission fully discharged any duty of fairness which it owed to the
petitioner with respect to the conduct of its mandate and with respect to its decision
making process. The petitioner was invited to and did participate fully in the
proceedings before the Commissioner. The petitioner was invited to provide the
Study Commission with any research or literature it considered relevant to the Study
Commission’s terms of reference. It took advantage of that opportunity by providing
a vast amount of material to the Study Commission. It identified additional experts
from whom it recommended that the Study Commission receive presentations. The
Study Commission arranged for those experts to make presentations. Finally,
representatives of the petitioner made extensive presentations to the Study
Commission.
[49]

The petitioner submitted that, despite the above, it was deprived of procedural

fairness because it was not given advance notice of the Study Commission Report
and an opportunity to respond to its findings with respect to the safety of conducted
energy weapons prior to its publication.
[50]

In my view, there is no merit in this submission. The obligation to provide

notice to a person prior to the release of a commission report arises in respect of

Taser International, Inc. v. British Columbia (Thomas Braidwood, Q.C.
Study Commission)
Page 18
reports in which findings of fault or misconduct are made against an individual or
corporation. In this case, the petitioner submitted that the findings of the Study
Commission were analogous to the findings made in a number of cases relied on in
argument. There are two fundamental flaws in this argument. Firstly, as I have
already found, the Study Commission Report is in no way analogous to the findings
made by the commissions considered in those cases. Secondly, the submission is
legally flawed in that it seeks to analogize from those cases to the circumstances of
this case. The Study Commission was expressly precluded from making any
findings of fault or misconduct. The petitioner’s entire submission with respect to the
necessity of being given notice is premised on the Study Commission Report
constituting a finding of fault or misconduct on its part.
[51]

If I had been of the view that the Study Commission report did, in fact,

constitute a finding of fault or misconduct on the part of the petitioner, that in of itself
would have compelled me to grant the remedy of certiorari. This is because such a
finding would clearly have been beyond the jurisdiction of the Study Commission.
However, in this case I made no such finding and indeed made a contrary finding.
The analogy that the petitioner therefore seeks to draw to the cases in which such
findings have been made is simply inapt to the facts and circumstances of this case.
WAS THE DECISION OF THE COMMISSIONER PATENTLY UNREASONABLE?
[52]

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. 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. The Commissioner carefully reviewed these presentations and the
literature on this subject in Part 9 of the Study Commission Report. Even assuming
that it would be appropriate for this Court to review the merits of the Study
Commission Report on the basis of reasonableness as opposed to procedural

Taser International, Inc. v. British Columbia (Thomas Braidwood, Q.C.
Study Commission)
Page 19
fairness, I can see nothing in the report on which I could base a conclusion that the
Commissioner’s findings were unreasonable.
DISPOSITION
[53]

For the foregoing reasons, I have concluded that there is no basis for judicial

review of the Study Commission Report and the petition is accordingly dismissed.
COSTS
[54]

I have concluded that there are no exceptional circumstances in this

proceeding which would justify a departure from the usual practice of this Court in
declining to grant costs for or against a Commission or the Attorney General.
[55]

Accordingly, the petition is dismissed without costs.

“Sewell J.”
______________________________
The Honourable Mr. Justice Sewell