SIU clears Hamilton officer in death of man shot near GO station

The provincial body that investigates police shootings has cleared a Hamilton officer of criminal wrongdoing in last September's fatal shooting of Anthony Divers, a 36-year-old Hamilton man.

The decision comes more than 10 months after Tony Divers was shot and killed on James Street South

Ontario's police watchdog has issued a decision in the case of a man who was shot and killed by Hamilton police on Sept. 30, 2016 in downtown Hamilton. (Andrew Collins/CBC)

The provincial body that investigates police shootings has cleared a Hamilton officer of criminal wrongdoing in last September's fatal shooting of Anthony Divers, a 36-year-old Hamilton man.

Ontario's Special Investigations Unit released the decision on Thursday evening, shortly after meeting with Divers' three siblings.

SIU Director Tony Loparco concluded the officer was justified in believing his own life was at risk, fearing that Divers was armed and reaching for a weapon.

Divers was unarmed when he was shot. 

Tony Divers was 36 when he was killed by police last fall. (Facebook)

"I'm shocked but I'm not at all surprised," said his sister Yvonne Alexander about the SIU conclusion.

"Because it seems to be the norm these days for officers to shoot and kill someone in mental crisis."

The decision comes more than 10 months after Divers was shot and killed on a busy downtown street, right by Hamilton GO Centre shortly before midnight.

The revitalized James Street South is home to busy restaurants and shops, and one of the city's first downtown condo projects.

Warned he was "anti-police"

In its decision, the SIU said officers responding to a call that Divers had assaulted a women had been told he was armed, was high on drugs, had a violent history and was considered "anti-police."

The officer fired two shots, one hitting Divers in the chest.

The report says when the officer confronted Divers on James South, he started walking away from the officer, ignoring his calls to stop and get on the ground.

It says he then turned around with his hand in the waistband of his pants and took two steps toward him, taking something out from the front of pants and pointing it at the officer.

Reasonable to believe his life was at risk

Loparco says in his report:

"When Mr. Divers had whatever he had concealed in his sweater pointed directly at the [officer], and was looking directly at the officer, the officer indicated that he had passed the threshold for risk tolerance and discharged his firearm."

Loparco concludes: "On all of the information that the [officer] had in his possession at the time he shot and killed Mr. Divers, I find that the [officer], subjectively, had reasonable grounds to believe that his life was at risk from Mr. Divers."

He says the circumstances met the threshold for justified use of force, and that in the circumstances, other less lethal options were not available.

"I find in all the circumstances, that despite the after the fact knowledge that Mr. Divers was not armed, the [officer] reasonably believed that his life was in danger from Mr. Divers and his actions in firing upon Mr. Divers were justified.

"I find that the [officer] did not have the luxury of delaying and risking his own life by waiting" to see what Divers was holding in his hand. 

Many parts of the incident were captured on video from nearby buildings, including the moment of the shooting.

Divers' siblings Leslie-Ann Wilson, Edward Divers and Yvonne Alexander were disappointed in the decision, read to them by SIU representatives in Hamilton at Alexander's home on Thursday night. (Kelly Bennett/CBC)

The incident began when police dispatched officers to a club at 41 Catharine Street North to interview a woman who said she had been assaulted.

That woman was Madeleine Divers, and she and Divers were married but forbidden from contacting each other.

Previous contact

The report said the officer who responded the initial assault call advised his 911 dispatcher that he had learned from her that she and Divers had a "no-contact" court order, that there had been previous violence toward her, that he was possibly high on Crystal meth and Fentanyl, that he was "anti-police" and that earlier in the day, he had shown her a Glock handgun he had in his pants.

A picture of Divers and some flowers serve as a memorial outside Yvonne Alenxander's home, where representatives from the SIU met with her and her siblings Thursday. (Kelly Bennett/CBC)

Loparco notes in his report that the officer who shot him had had previous contact with Divers and considered him "anti-police and very violent," involved in organized crime and a drug user. He also points out that a civilian witness to the shooting, who had no background on Divers or what police knew of him, reached the same conclusion as the officer, that Divers was pulling out a gun.

Divers was struggling with mental health issues when he was fatally shot by police, his family said. For months, Divers' siblings have said they didn't think their brother was armed.

Edward Divers, the victim's brother, said the decision and explanation for why the shooting is justified felt to him like "an eye for an eye," that his brother was treated as a "violent thug" with no regard for his mental illness.

 An eyewitness who was walking north on James St. said he saw the shooting. He told CBC News he didn't see the man carrying a gun.

"He didn't look very afraid of the cop; he wasn't being cooperative, but he didn't look like he was any particular threat," the eyewitness, Joe Towers, said. "It just didn't seem like he wanted to be arrested."

The three siblings of a man who was shot by police, from left Leslie-Ann Wilson, Edward Divers and Yvonne Alexander, say they were frustrated by how long it took to hear whether the officer will be charged. (Kelly Bennett/CBC)

Photos of the scene show Diver being tended to just south of the underpass on James Street, near where buses turn into the GO Centre.

Divers' death and the secrecy around the circumstances, though common after police-involved shootings, ignited criticism and suspicion from Divers' family.

His history with police and the justice system, included a long list of charges going back to the late 1990s, including a conviction for manslaughter and previously resisting arrest.