Family of Tony Divers, who was shot and killed by police, is suing for $7.5M

The siblings of Anthony Divers, who Hamilton police shot and killed in 2016, are suing the police board and two officers for $7.5 million. But the lawsuit is mostly on hold until an inquest later this year.
Leslie-Ann Wilson, Edward Divers and Yvonne Alexander, siblings of Tony Divers, have filed suit against the Hamilton Police Services board and two officers. (Kelly Bennett/CBC)

The siblings of Anthony Divers, who Hamilton police shot and killed in 2016, are suing the police board and two officers for $7.5 million. But the lawsuit is mostly on hold until an inquest later this year.

Yvonne Alexander, Edward Divers and Leslie-Ann Wilson filed the suit in Hamilton court in the fall. The siblings are asking for $4 million, plus the cost of having a lawyer at the inquest. Tony Divers's estate, administered by Alexander, is claiming another $3.5 million.

The suit claims police "improperly used excessive and lethal force." It says police didn't tell Divers why he was being stopped, nor did they consider his mental state, or if he could hear them.

The Special Investigations Unit (SIU) cleared the officers of wrongdoing in 2017. The lawsuit has a different take.

"They approached Anthony in an aggressive, antagonistic and authoritarian manner which was unjustified under the circumstances, and which escalated the situation," the statement of claim says.

"They used force in circumstances where none was required."

A police officer shot Tony Divers on Sept. 30, 2016. (Facebook)

None of the allegations have been proven in court. Hamilton police have filed a notice of intent to defend themselves against the claim, but haven't yet filed a statement of defence.

Hamilton Police Service says it can't comment because the matter is before the courts. 

Roy Wellington, lawyer for the Divers family, says details will become clearer at the inquest. 

"We'll know the names of the officers there," he said.

"We'll have a better understanding of what this officer was trained to do. We'll have a better understanding of what information this officer had about Mr. Divers. We'll also certainly know more about any interactions they had."

Shot near the GO station

Divers was 36 when he was shot twice by an officer on Sept. 30, 2016. He was walking unarmed near the Hamilton Centre GO station on James Street South. It was just before midnight.

Police had been dispatched to a club earlier that night to interview Divers's wife, who said he'd assaulted her, says a 2017 report from the Special Investigations Unit (SIU). There was a "no contact" order between them.

A 911 dispatcher also relayed that Divers was possibly high, had been "anti-police" earlier that day, and had a ​Glock handgun in his pants.

When the officer confronted Divers, the report says, Divers started walking away. He ignored calls to stop, it says, and to get on the ground.

Then he turned, the report says, and had his hand in the waistband of his pants. He took two steps toward the officer and took something out of the front of his pants, which he appeared to point at the officer.

Did Divers hear the police?

The lawsuit, meanwhile, claims one of the officers had been on the job less than six months. The officers didn't call Divers by name, it says, and didn't note if he was wearing headphones, which could "impair his ability to understand and respond to … instructions."

The officer, the claim says, aimed his gun at Divers's back when there was no sign that Divers knew was being pursued.

Once he was shot, it says, that officer didn't administer first aid. He also didn't consider how drugs or mental illness might impact Divers's ability to comply.

No date has been set for the inquest.

About the Author

Samantha Craggs

Reporter

Samantha Craggs is a CBC News reporter based in Hamilton, Ont. She has a particular interest in politics and social justice stories, and tweets live from Hamilton city hall. Follow her on Twitter at @SamCraggsCBC, or email her at samantha.craggs@cbc.ca