Despite much still unknown, SIU concludes probe into fatal police shooting of man in Markham with no charges

A York Regional Police cruiser is seen at the scene of an officer-involved shooting that left a man dead in Markham on Friday night.

The province's police watchdog has decided not to charge a police officer in connection with the fatal shooting of a 35-year-old man in Markham last year despite some unanswered questions about the circumstances surrounding the incident, including what prompted the officer to engage with the man in the first place.

Special Investigations Unit (SIU) Director Joseph Martino said in a report released Wednesday that he did not find reasonable grounds to lay charges against the York Regional Police (YRP) officer who shot and killed Moses Erhirhie in a shopping plaza parking lot at Fairburn Drive and Highway 7 on the evening of Jan. 21, 2022.

In his analysis, Martino admitted that "there is much about this incident that remains unknown," including why the officer interacted with Erhirhie in the first place. The SIU said the officer, referred to in the report as the subject officer (SO), declined to be interviewed for the investigation and did not provide notes as his legal right.

Martino also posed several questions about the circumstances surrounding the officer's actions, such as why he tried to arrest Erhirhie, who is referred to in the report as the complainant.

"The answers to these questions are important. If the SO had no lawful reason to arrest or detain the Complainant, then the Complainant was entitled to resist that process. In the absence of any evidence to this effect, however, and in circumstances suggesting a plausible scenario in which the officer was in the legitimate discharge of his duties, the investigation does not give rise to a reasonably grounded belief that the SO was acting outside the scope of his lawful authority," Martino wrote.

"In the final analysis, given the speed with which events unfolded and the volatility of the situation, I am unable to reasonably conclude that the SO acted without justification for deciding in the heat of the moment to meet a threat of grievous bodily harm or death with a resort to lethal force of his own."

Using evidence the SIU collected from YRP, video from a nearby business and a cellphone recording from a civilian witness, Martino provided a timeline of what happened between the officer and Erhirhie.

It began at around 9:15 p.m. when Erhirhie arrived in the parking lot in a white Hyundai Elantra. He stopped beside a snowbank at the southeast corner. The SIU said he was with a woman who was in the front passenger seat.

Erhirhie exited the vehicle and walked towards the passenger side and appeared to urinate into the snowbank, the SIU said.

He stood for 25 seconds before a marked police SUV pulled up and stopped near his vehicle. The SIU noted that the lone officer in the SUV had been patrolling parking lots before arriving in that area.

The SIU said Erhirhie walked over to the police cruiser and appeared to be in some form of conversation with the officer. A short time later, the officer climbed out of his cruiser and approached Erhirhie's vehicle. He then followed the officer and stood by the rear tire.

The two then spoke to one another for about two minutes until Erhirhie reached for the driver's door handle and attempted to climb back inside, the SIU said.

The officer immediately intervened, the SIU said, adding that the two were in a tussle for several seconds. Erhirhie was able to break free and run away. The officer chased him as he rounded a parked vehicle and doubled back towards his vehicle.

The SIU said Erhirhie finally managed to enter the driver's seat but the officer was able to reach in and take hold of him.

"The officer attempted to remove the Complainant from the Hyundai even as the vehicle began to slowly travel backward. It had reversed about a metre when it stopped momentarily before accelerating in a northwesterly arc past the cruiser and up the snowbank," the SIU said.

The Hyundai came to a stop on an incline on the snowbank. Seconds later, the female passenger exited the vehicle. With the driver's door still open, the officer extricated himself from the car, stepped back and discharged his gun "once, and likely, up to three times" at Erhirhie.

"It appeared the Complainant was attempting to exit the Hyundai via the open front passenger door when he was struck by one or more of the gunshots and collapsed – his head coming to rest on the front passenger seat, his feet on the driver's seat," the SIU said.

Screenshot of video from a nearby business showing the interaction between a YRP officer and a 35-year-old man on the evening of Jan. 2022. (Supplied)

The officer then moved towards the passenger's side with his gun aimed at the door. The SIU said he remained in that position for approximately two minutes until other officers arrived at the scene.

Four minutes had passed since shots were fired before officers removed Erhirhie from the vehicle and performed CPR. He was rushed to the hospital, where he was pronounced dead.

The SIU said an autopsy revealed that the cause of death was "gunshot wounds of torso."

The agency noted that police located a Glock Model 23 in a satchel worn by Erhirhie. It was handed over to the SIU along with a magazine loaded with 11 cartridges and a single cartridge.

"While the SIU is without first-hand knowledge of the officer's mindset when he fired his weapon, it seems likely that the SO shot the Complainant attempting to defend himself from a reasonably apprehended attack," Martino wrote in his analysis. "That is the import of the utterances the SO made to certain officers arriving after the shooting, namely, that he fired his weapon believing he was about to be killed by the Hyundai in the Complainant's control, and there is nothing in the evidence to contradict it."

He said video evidence appears to verify the statements. Martino posited that Erhirhie was desperate to flee as he was in possession of a loaded gun, which was unknown to the officer at the time.

"Though perhaps not his intention to hurt or assault the SO, the Complainant's frenzied efforts to escape apprehension in his vehicle gave the officer reason to believe that his life was in imminent danger," he wrote.

"On this record, it would appear that the SO had cause to want to stop the Hyundai from moving and, once stopped, to keep it from moving again, by discharging his weapon to incapacitate the Complainant."

Martino added that while the officer could have deployed a Taser to de-escalate, "nothing stood to immediately immobilize the Complainant as the use of a firearm, especially in light of the officer's precarious position at the time."