Lawyer says Tony Divers, man shot by police, had mental illness

Tony Divers was struggling with mental illness when he was killed by police Friday night, according to a Hamilton defence lawyer who has represented him since 2011.

"Recently he's been dealing with some mental health issues," said the lawyer, Jaime Stephenson. "He'd been intermittently seeking treatment for that."

Stephenson wonders whether Divers' location when he was shot on James Street South on Friday was "an indication of where he was headed" that night whether he was possibly headed to the city's psychiatricemergency room at St. Joseph's Healthcare Hamilton.

"He was awfully close to St. Joe's," she said. "I wasn't there, obviously. But my suspicion is that he may have been seeking treatment."

She said she didn't know what Divers had received as a diagnosis, or whether he was taking medication, but she said she knew he was receiving "some treatment" for mental illness before his death.

Divers was fatally shot less than 30 minutes after an assault took place that he was believed to have been involved in several blocks away.

Stephenson saidshe never knew Divers to carry a gun.

Stephenson said Divers' sisters and his family are "absolutely devastated" at the loss of their brother.

They've been waiting to talk to media until after Divers' funeral, which is scheduled for Thursday, both to mourn Divers' death and out of respect for the SIU investigation, Stephenson said.

"It's a tragedy to lose someone at 36 years of age who was struggling with some difficulties," she said.

Divers pleaded guilty to manslaughter and received the equivalent of a 10-year sentence for his role in a 2002 fatal stabbing of a 26-year-old man, according to a Hamilton Spectator article from 2005.

"They've been trying to support him in his rehabilitation and reintegration," Stephenson said. "They finally had their brother back and this tragedy occurred."

'I didn't see him waving any gun around'

The SIU said that when the call came in about the assault on Catharine Street North,therewere reports the man who hit the woman had a gun. Neither police nor the SIU said where those "reports" originated.

Neither local police nor the SIUhave said if the man who was shot was found to have a gun.

Joe Towers, who was walking north on James St., said he saw the man get shot after he was walking away from an officer. He didn't see the man carrying a gun.

At first Towers thought commotion he heard behind him was just "regular Hamilton drunk garble." He said he heard a man yelling, "F---cking goof."

Hewasn't being cooperative, but he didn't look like he was any particular threat.- Joe Towers, witness of police shooting of Hamilton man

He soon realized there was a cop following the man. Towers thought it seemed like an ordinary Friday night arrest, until the cop said "Get your f---ing hands up," Towers said he remembers.

Towers turned around.

"At this point the officer has a gun drawn on the man," he said.

Towers turned to duck behind a dumpster to be out of the way and avoid getting shot himself, he said.

"It was sort of in mid-turn where I heard the first shot go off, and I was turning back, and I saw the second shot just hit the guy and the guy fell on the ground," he said.

Several officers "swarmed in," they flipped the man over and put his hands behind his back, Towers said.

An ambulance came and paramedics began trying to revive him, and Towers left. He's providing a statement to the SIU for its ongoing investigation.

Towers remembers the officer being "a few feet, not very far at all" away from the man, who did not appear to be armed, he said.

"I didn't see him waving any gun around," Towers said.

"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," Towers said. "It just didn't seem like he wanted to be arrested."

Towers said he was shaken up after witnessing the incident.

"My only concern was why the gun was drawn on him in the first place," he said. "Perhaps [the cop] was told that he had a gun by somebody else, but I don't know."

Towers said in his "unprofessional opinion" the officer was close enough to Towers to use a Taser instead of a gun.

'I query why deadly force was used'

Stephensonsaid she didn't know him to have alcohol addiction, and though she's heard about drug use, she said he hasn't had any convictions for drugs.

"I query why deadly force was used," she said. "Even if there was some report on a 9-1-1 call that there was a weapon, if you're there and you don't see a weapon ."

Stephenson followed up that thought saying she hasn't taken the police use-of-force training, nor has she "had to face the type of situations" police do.

"It's always a challenge and obviously, there has to be a balance between thesafetyof our police and the safety of our community, whether they have mental health issues or not,"Stephensonsaid.

"It doesn't seem like the police are learning from the past mistakes that have happened."

Recent inquests into the police shooting deaths of Steve Mesic, who had mental illness, and Andreas Chinnery, who was emotionally disturbed, have made recommendations for police training and rollout of "less lethal" equipment options like Tasers to the front-line officers.

Hamilton is one of the first police services in the province to outfit all front line officers Tasers as a "less lethal" option, after the Ministry of Community Safety and Correctional Services eased restrictions on who could use them in 2013.

Hamilton police use of Tasers wasup significantly last year due in large part to 2015 being the first year that all frontline officers took Tasers out with them to their calls.

kelly.bennett@cbc.ca | @kellyrbennett