Inquest determines police shooting of Tony Divers was a homicide

The jury in the inquest into the fatal police shooting of Tony Divers has ruled his death was a homicide and made 13 recommendations aimed at preventing similar deaths in the future.

Members of Divers'sfamily wiped away tears and hugged as the verdict was read out.

"We've waited three years to have this inquest to find out our brother was killed unarmed in crisis,"Yvonne Alexander, Divers's sister said outside court."Thanks to the jury we got our justice."

In reaching itsconclusion, the jury rejected the argumentof lawyers representing Hamilton police and the individual officer that the manner and circumstances of the Divers's death meant it should be deemed a suicide.

The inquest, which called 19 witnesses over six days and included video of the moment where the trigger was pulled, was aimed at examining the death of the 36-year-old who was shot and killed in the middle of James Street South just before midnight on Sept. 30, 2016.

The five-person jury wastasked with answering five questions the name of the person who died, the place of death, the date of death, the medical cause of death and manner of death.

The jury answered the first four questions easily enough. But inpresentations to the jury, lawyers from different sides of the case did not agreeon whether Divers's death would be considered a suicide, homicide or undetermined.

Unlike a criminal trial, an inquest doesn't assign blame. The jury's finding of homicide simply means a majority of members found Divers's death was intentionally caused by another person who knew their actions could be fatal.

Jury membersheard Divers struggled with drug use as well as homicidal and suicidal thoughts in the days leading up to the shooting and that he assaulted his then-wife shortly before he was killed. But, despite a broadcast that went out over the police radiosaying he was possibly armed, he did not have a gun.

Const. Nicholas Cercone, the officer who pulled the trigger, was cleared by the SIU of any criminal wrongdoingin 2017.

Hetestified thatDivers was not complying with his demands, and appeared to beholding ontoa weapon under jacket so he feared for his life when he fired.

The officer also said if he found himself in the same situationhe'd shoot again something Divers's family said everyone in Hamilton should find "disturbing."

Lawyer says similar shootings could happen

During his charge to the jury, Dr. John Carlisle, the coroner presiding over the inquest,said he believed Divers's' death shouldbe considered a homicide.

Roy Wellington, the lawyer representing Drivers's family put forward the same suggestion, arguing that althoughCercone was following his training on the night of the shooting, his decisions were based on uncorroborated information.

Wellington said Cercone had essentially been trained to see things such as baggy clothing and the fact that Divers's hands were near his waist as evidence he was armed, even though he wasn't.

"There must be a way for officers to be trained to consider thepossibilitythat whatthey'reperceiving according totheir training is wrong," he explained.

"We need to think really hard about whether ...what we want is for officers to, in the heat of the momentwhen they're making snap decisions, not to consider that they might be wrong and not to consider other options."

For that reason, Wellington said, the circumstancesthat led to Divers's death should be used to educate officers.

"We have a scenario where all the things an officer is trained on are called into question," he added. "All the things they're trained to believe and how they're trained to act, in this instance, resulted in someone dying needlessly."

The lawyer also cautioned that based on what happened to Divers, he believedsimilar shootings could happenin the future unless training changes.

"That might mean that anyone in the community might display some of these characteristics, coincidentally, just as Anthony Divers did ... and end up being shot."

For officer it was either 'shoot or be shot'

The lawyers forCercone and the Hamilton Police Service disagreed that the shooting should be considered a homicide, instead pointing toDivers's medical history and testimony abouthim talking about wanting to die as evidence that his death should be considered a suicide.

Gary Clewley, the lawyer representing Cercone, said Divers was having a hard time adjusting to life after prison,he didn't have anywhere to live and his relationship with his wife was falling apart.

He pointed to a review of medical records carried out by psychiatrist Mara Goldstein that showed "escalating drug use" that was followed by "bursts" of homicidal and suicidal thoughts.

"It caused him to behave in a way that he predicted, indeed invited, that the would be shot by someone, either police or a member of organized crime," said Clewley.

"He knew full well he was giving officer Cercone no choice but to ... conclude that it was either shoot or be shot. That is what makes this case one of suicide."

Marco Visentini, the lawyer on behalf of Hamilton police, echoed that thought in his statement to the jury.

He turned to express personal condolences to the Divers family before saying he believed, based on the way Divers was acting that night, that wanted police to think he hada gun.

"The public asks a lot of our police officers, but to risk his own life was not a decision officer Cercone was required to take when he facing a possible gunfight with a man who, by all appearances, was very possibly armed, was an imminent threat to him and the public."

Visentini added based on the testimony the inquest heard, dying at the hands of police was something he had discussed with both his ex-wife and partner at the time

"Mr. Divers took actions that night that were consistent with a man who was choosing notto live anymore," he said, adding the victim's actions were deliberate and meant to "bring about his own death."

'Hopefully this will never happen again'

Along with its finding of homicide, the jury offered a list ofrecommendations, nearly doubling the seven that were suggestedbefore their deliberations began.

The 13 recommendations were addressed to Hamilton police, the Ontario Police College, Ministry of Health and Long Term Care and the Ministry of the Solicitor General.

Among them were suggestions that the circumstances of Divers's death be used as the basis for a training scenario and that Hamilton police should carry out a debrief on theshooting.

The jury also recommended that police officers be trained about possible negative outcomes from using "or else" commands and instead should consider using phrases such as "put down the gun, we do not want to hurt you," when dealing with a person in crisis.

Alexander said the family is remembering Divers as a sweet man who gave the best hugs and whose "smile could light up a room."

"He had a past but he had so much ahead of him," she added.

"As long as these recommendations are implemented then I know I have served justice for my brother and for anyone else. Hopefully this will never happen again."