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Account of men arrested in brawl outside Social Club not supported by video, public hearing told

Sep 23 2012

A use-of-force expert relied on the police version of what happened during a chaotic brawl outside Social Club in March 2010 even though it was inaccurate, a public hearing learned this week.

John McKay, a former member of the RCMP and the Vancouver Police Department, was asked to prepare a report on the actions of Victoria police Acting Sgt. Chris Bowser and Const. Brendan Robinson, which were caught on camera and seen more than 270,000 times on YouTube.

McKay's final report, submitted to the public hearing, clears both officers of allegations of abuse of force against 20-year-old Tyler Archer and Harpinder Kang.

McKay concluded that "if the police version of events is correct," the officers' use of force in handcuffing Archer and Kang was within training and use-of-force guidelines.

During cross-examination, Archer's lawyer, Richard Neary, asked McKay if he had ever prepared a draft report on the incident. McKay said he could not remember. However, over the lunch hour, Robinson's lawyer, David Butcher, found a copy of a use-of-force document marked "draft."

As he scanned the draft, Neary noted that it contained statements by Kang and Archer describing what happened outside the Store Street bar that night.

Kang said he was standing in line and had a pushing match with an unknown male. Suddenly, he was pepper-sprayed, taken to the ground, handcuffed and kicked.

Archer said he had been attacked by several men as he walked by the club. He went to speak to a police officer and was told to get on the ground, which he did. As he complied, one officer kneeled on him and another kicked him.

In the first draft, McKay came to the same conclusion for the police version of events, but he also concluded that if Kang's and Archer's version of events were correct, the use of force by the officers did not fall within training and use-of-force guidelines.

That version of events was deleted from McKay's final report, noted Neary.

"The police version becomes your version," he said.

McKay replied that the video of the event was closer to the police version of events. Archer's version of events wasn't supported by the video because he left things out, he said.

Neary argued that the video does not support the police version, either. In a statement to Vancouver police, Bowser said he told Kang twice to put his hands behind his back and gave him a chance to comply before he kicked him.

McKay agreed that did not happen. In the 55-second video of the incident, Bowser walks over, says nothing and kicks Kang in the buttocks twice.

Bowser also told Vancouver police he gave Archer two commands to put his hands behind his back before he kicked him, Neary said.

The video shows Bowser yelling at Archer twice to get down on the ground. Archer sits on the grass.

Robinson rushes in and pushes him over.

Bowser yells, "Put your hands behind your back," and a second later delivers a hard kick to Archer's side. The kick is followed by two more knee jabs to Archer's back.

Archer was compliant within seconds of Bowser telling him to get on the ground, Neary said.

McKay agreed. "Yes. He got his butt on the ground."

Bowser thought Archer was compliant, McKay said. But Robinson thought Archer was resisting because he sat on the ground rather than getting down in a prone position - which he was never told to do.

Neary suggested the officers could have told Archer to lie on his stomach.

"Precise instructions would have been better than a wrestling match," Neary said.

McKay said the officers were dealing with a volatile bar brawl, a crowd of about 60 people, and an unconscious man who needed medical help. They believed they had to get the situation under control as quickly as possible.

"These situations can quickly escalate and grow into a full-blown riot," he said.

McKay told the hearing he has written more than 500 opinions on use of force and testified at more than 40 trials, public hearings and tribunals. He has testified four times against police, he said, noting that about 10 per cent of his reports did not support police.

McKay told the hearing he testified that he believed the force used by North Vancouver RCMP Const.

Donovan Tait, who punched a handcuffed suspect three times in the face, breaking his jaw, was reasonable. Tait was convicted of assault causing bodily harm in 2005.

Initially, New Westminster police Chief Dave Jones, as disciplinary authority, substantiated allegations of excessive force against Bowser and Robinson in their treatment of Archer and recommended the officers receive a reprimand.

However, during the disciplinary proceedings, both officers and a use-of-force expert testified.

Archer and Kang, who were not allowed legal representation, withdrew their complaints.

Jones reviewed and reversed his decision. At that point, Police Complaint Commissioner Stan Lowe ordered a public hearing, Neary said.

The hearing continues Sept. 28. ldickson@timescolonist.com

THE MAKING OF A VIRAL VIDEO

March 21, 2010 - Acting Sgt. Chris Bowser and Const. Brendan Robinson are caught on cellphone camera in the midst of a brawl outside a Store Street bar. Bowser is seen kicking Tyler Archer, and the video quickly goes viral on YouTube.

March 25, 2010 - Office of the Police Complaint Commissioner (OPCC) issues an order to investigate.

May 4, 2010 - Richard Neary, lawyer for Tyler Archer and Harpinder Kang, officially submits complaint forms to the OPCC on behalf of his clients.

May 12, 2010 - Concerned citizen Gordon Ronalds files third-party complaint.

April 14, 2010 - VicPD Chief Constable Jamie Graham asks Calgary Police Service members, led by Sgt. Harv Davies, to investigate the incident. Graham delegates his discipline authority to New Westminster Police Service Chief Dave Jones.

Sept. 15, 2010 - Archer and Kang file notices of civil claim

Dec. 29, 2010 - New Westminster police Chief Dave Jones, as disciplinary authority, substantiated allegations of excessive force against Bowser and Robinson in their treatment of Archer and recommended the officers receive a reprimand.

Feb. 14, 2011 - After the Vancouver Police Department conducts a criminal investigation, Crown counsel announces they will not pursue charges.

May and June 2011 - Bowser, Robinson and a use-of-force expert testify at discipline proceeding. Archer and Kang, who were not allowed legal representation, withdrew their complaints.

Nov. 28, 2011 - Jones reviews and reverses his decision, ruling the officers' use of force was not excessive.

February 2012 - Police Complaint Commissioner Stan Lowe orders a public hearing.

June 25, 2012 - The OPCC public hearing begins

July 2012 - Archer testifies at the OPCC public hearing, stating he initially though police wanted to help him, not handcuff him.

July 18, 2012 - Bowser testifies at the OPCC public hearing

Sept. 20, 2012 - OPCC public hearing reconvenes for one day.

Oct. 29-30 - Final submissions are scheduled to be held.

February 2013 - Tentative date for trial in civil claim

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