Hamilton

Police not trained for specific circumstances of Tony Divers shooting, inquest hears

Sgt. Scott Galbraith told the inquest police are not trained for a scenario where someone is in crisis and exhibiting signs they may be armed — even though they don't have a gun.

Jury expected to being deliberating Wednesday

The inquest into the death of Tony Divers previously heard he had drugs in his system and had expressed suicidal thoughts on the day of his death. (Facebook)

Hamilton police don't train for the specific circumstances that confronted an officer on the night Tony Divers was shot, an inquest into his death heard Tuesday.

Sgt. Scott Galbraith told the inquest police are not trained for a scenario where someone is in crisis and exhibiting signs they may be armed — even though they don't have a gun.

Last week the inquest heard Divers had drugs in his system and had expressed suicidal thoughts  the day he was fatally shot by Const. Nicholas Cercone.

Cercone told the inquest he believed the 36-year-old had a gun because another police officer radioed that Divers was possibly armed, along with the fact he ran away in an awkward manner and appeared to be holding something under his jacket near his waistband.

The officer confronted Divers on James Street South just before midnight on Sept. 30, 2016 and when he shrugged and took two short steps forward Cercone said feared for his life and fired, only to later learn the man he killed did not have a weapon.

Ontario's Special Investigations Unit (SIU) cleared the Cercone of any criminal wrongdoing for the shooting.

On Tuesday Galbraith, who spent several years as a use of force trainer for the Hamilton Police Service, was asked whether local officers are taught what to do if they encounter someone in crisis who appears to be trying to conceal something.

Galbraith said no training along those lines had been offered in his time as a teacher.

He allowed that a lesson about what to do in a situation like that might be useful, but quickly added the reason officers aren't taught about that type of scenario is that the "constellation" of factors that led up to Divers's death isn't something the service has seen before.

Galbraith said in his experience situations where there are reports someone may have a gun and they appear to be hiding something but then it turns out they weren't hiding anything, whether it be drugs or a firearm, are not common. Therefore, training an officer on a situation that doesn't happen in the real world does not make a lot of sense.

"Given the necessary teaching points we're trying to get across, having a scenario that nobody has ever encountered seems unrealistic," he said.

This screenshot from a surveillance video shown during the inquest into the death of Tony Divers shows the tense moments before the trigger was pulled on Sept. 30, 2016. (Anthony Divers Inquest)

Later, while responding to a question from Roy Wellington, the lawyer representing Divers's family about using "or else" commands such as "Get down or else I will shoot you," which Cercone said he used on the night of the shooting, Galbraith clarified his point further.

"The characteristics and the information provided and the reaction from Mr. Divers, we haven't seen that happen, where there isn't something present or that person .... is comfortable with the possible resolution — the or else I'll shoot. We haven't seen it where it's nothing at all."

Galbraith said police sometimes use inquests as inspiration for training, adding Hamilton police even discussed using the Divers shooting as the basis for use of force scenario, but it's not clear if that happened.

Former officer shares similar experience

Earlier in the day, the inquest heard from Thomas Sharkey, a former U.S. Army Ranger and tactical officer with the Toronto Police Service, was brought in to the inquest as an expert on use of force and police training.

He said based on his review, Cercone followed his training and he believed the shooting was "by the book."

Sharkey said during his time as an officer he did use "or else" commands to get suspects to comply – such as "stop or we will shoot," but noted that if he knew the person he was pursuing was suicidal he might suggest using different wording such as "drop the gun, nobody wants to hurt you."

However, the former policeman said in situations where he was told someone had a gun he would treat them as if they were armed and, even if they were suicidal, a sudden move of someone he believed to be carrying a weapon he would still fire.

He illustrated his point by recalling a situation similar to the Divers shooting where he was dispatched after reports of an armed robbery.

Divers was rushed to hospital after he was shot by Hamilton police. He was pronounced dead on Oct. 1. (Andrew Collins/CBC)

Sharkey said he followed one of the alleged robbers from a distance and noticed the man kept his hands under his coat. When the suspect turned to face him, Sharkey said he fired and the other man dropped a sawed-off shotgun from below his coat as he fell.

That story led Wellington to ask for the jury to be dismissed so he could challenge whether or not Sharkey should be able to give evidence because of questions about impartiality. The lawyers representing Cercone and the Hamilton police argued against his stance, saying Sharkey's experience is part of what makes him an expert witness, so his evidence should be allowed.

Presiding coroner John ultimately ruled Sharkey's experience would be more helpful to the jury than any potential harm it could cause. But he cautioned the jury they should consider his personal experience when they weighed what he said.

The inquest continues Wednesday, when Carlisle is expected to charge the jury so they can begin their deliberations.

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