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CANADA

Province of Alberta

Report to the Minister of Justice and Attorney General Public Fatality Inquiry

Fatality Inquiries Act

WHEREAS a Public Inquiry was held at the in the City


(City, Town or Village)

Provincial Court Calgary , in the Province of Alberta, , , 2011


year

of day of day of

(Name of City, Town, Village)

on the 21st to the 25th on the before into the death of 6th

November June

, (and by adjournment ),

2012
year

The Honourable, S. L. Van de Veen

, a Provincial Court Judge, 33


(Age)

Travis Douglas Oakes


(Name in Full)

of 808 Abbeydale Drive N.E., Calgary, Alberta


(Residence)

and the following findings were made:

Date and Time of Death: Place: Medical Cause of Death:

March 18, 2009 at 6:40 a.m. Foothills Medical Centre, Calgary, Alberta

(cause of death means the medical cause of death according to the International Statistical Classification of Diseases, Injuries and Causes of Death as last revised by the International Conference assembled for that purpose and published by the World Health Organization The Fatality Inquiries Act, Section 1(d)).

Gunshot wound to the head

Manner of Death:
(manner of death means the mode or method of death whether natural, homicidal, suicidal, accidental, unclassifiable or undeterminable The Fatality Inquiries Act, Section 1(h)).

Homicide

J0338 (2007/03)

Report Page 2 of 2

Circumstances under which Death occurred: See attached

Recommendations for the prevention of similar deaths: See attached

DATED at

February 1, 2013 Calgary

,
Original signed by

, Alberta. S.L. Van de Veen A Judge of the Provincial Court of Alberta

J0338 (2007/03)

Page 1 of 8 Throughout this Report the identification of the members of the covert undercover police unit are referred to by their initials only, with the exception of Sergeant Jennings, whose identity had been published prior to his giving evidence

CIRCUMSTANCES UNDER WHICH DEATH OCCURRED 1. Mr. Oakes was shot in the head in the early morning hours of March 18, 2009. He was shot multiple times by Sergeant Jennings, the Sergeant responsible for the High Enforcement Auto Theft (HEAT) Team, a covert police unit whose objective is to locate stolen vehicles, covertly follow them, and safely arrest the driver of the stolen vehicle once that person is a reasonable distance from the vehicle. The autopsy revealed the fatal shot entered the deceaseds right temple causing significant injuries to the brain and skull. There was a second gunshot wound to the right side of the head which was more superficial, and a third gunshot wound to the right shoulder. The right shoulder wound caused a significant amount of blood loss to the left chest cavity but would not have been immediately fatal. On March 17th and18th, 2009, the HEAT Team was comprised of several officers, all driving various unmarked police vehicles as well as Constable W. and his police dog, who travelled with Constable D (working in an undercover capacity at the time) in his unmarked police vehicle. The Team had the following information regarding Mr. Oakes, which came from an e-mail prepared by Detective R. and reads as follows: "Travis Oakes has been terrorizing 3 and 7 Districts. He has over 20 CC Warrants for 08, 86, 16, etc. Has been driving a 1086 (stolen vehicle) 1991 Chevy Caprice, light grey has been swapping 34 plates on a daily basis, sometimes 2 per day. He has been in about 4 reported 1080's. When HEATTed up he drives like a complete retard. Was doing over 120 K down Centre Street and 12 Avenue at 2 pm in the afternoon." The HEAT Team was also in possession of a photograph of Mr. Oakes. 4. The HEAT Team became involved with Mr. Oakes on March 17, 2009 at 21:07 hours when Constable R. observed the stolen vehicle operated by Mr. Oakes,

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Page 2 of 8 and as a result of Constable M. identifying Mr. Oakes and his stolen vehicle, Mr. Oakes became a priority for the HEAT Team. Accordingly the HEAT Team engaged in surveillance of the Caprice from 21:07 hours on March 17th to 03:10 hours on March 18th, approximately six hours. During surveillance Mr. Oakes was observed to drive slowly into parking lots occupied by 711's, Gas Stations, etc. and appear to be "casing" these businesses. He stopped to meet various individuals very briefly and conducted hand to hand exchanges, behaviour consistent with drug transactions. He was also seen to steal from various newspaper boxes. At 01:48 on March 18th, 2009 it appeared Mr. Oakes was smoking drugs within the vehicle. At this time he had a passenger, Mr. Bryan James, who confirmed at the Inquiry that Mr. Oakes had smoked crack cocaine approximately an hour before they went to the car wash where Mr. Oakes was shot. The toxicology report in evidence from the Medical Examiner's Office found cocaine in his system, at levels indicating he had used cocaine five or six times prior to his death. 5. Throughout the six hour surveillance, at no time was Mr. Oakes far enough away from the Caprice to permit the HEAT Team to attempt a safe arrest. At approximately 0:300 on March 18th, 2009, while driving the Caprice, Mr. Oakes and his passenger, Bryan James, entered the Western Pride Car Wash, a multiple bay manual car wash facility. The entrance doors to each bay of the car wash are on the north side of the building and the exit doors are on the south side. Each bay door is Plexiglas and wash bays were well lit. The parking lot surrounding the car wash was also well lit. Once Mr. Oakes drove his vehicle into one of the car wash bays, the entrance or north bay door closed. Police determined that this was an appropriate opportunity to try and arrest Mr. Oakes, since both car wash doors were closed and his vehicle was fully inside the enclosed area. Police reasoned Mr. Oakes would be outside his car washing it which would give police the opportunity to arrest him. Constable D. and Constable W. pulled into the bay immediately to the right of Mr. Oakes' vehicle. The hope was that Constable W.s police dog could prevent Mr. Oakes from getting back into the vehicle as an arrest was attempted. At the same time as Constable D. drove into the bay next to Mr. Oakes, the police positioned their two largest vehicles outside the entrance and exit doors of the car wash in order to prevent any possibility that the deceased could exit the car wash in the stolen vehicle. The largest vehicles were Sergeant Jennings' Dodge Durango and Constable M.s Chevrolet Truck. In essence, police surrounded both the entrance and exits of the car wash with both vehicles and other police personnel.

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Page 3 of 8 7. As Constable D. exited his vehicle within the car wash and went around to the north doorway separating the bays, he had his Taser out. Constable W. got out of the passenger's side of Constable D.'s truck and went to the south doorway near the exit door with his police service dog. Sergeant Jennings illuminated the red and blue police lights inside the grill of his Durango (located outside the south exit door of the car wash) and locked the doors of his vehicle after exiting it. At this point police announced their presence and directed the deceased to show his hands. From the totality of the evidence it appears the deceased noticed Constable D. and Constable W. and immediately ran back into the stolen vehicle. After being challenged by the police and told to show his hands, the deceased placed the stolen motor vehicle into reverse and drove in reverse at a high rate of speed. The vehicle smashed into the entrance door and came into contact with Constable M.'s Silverado which was located outside the north entrance door of the car wash. At this point Constable D. had to dive out of the way into the bay that his vehicle was located in. Constable D. holstered his Taser and drew his firearm. Mr. Oakes' vehicle had come through the Plexiglas entrance door of the car wash and struck the front of Constable M.'s truck at a time when Constable M. was standing between the driver's door and the actual entrance to his truck. When his truck was struck the pillar area of the truck came back and hit him and knocked him to the ground. After the stolen Caprice struck the north entrance door and Constable M.'s Silverado, Mr. Oakes stopped the vehicle abruptly, then put the vehicle into drive and drove it forward into the south exit door and into Sergeant Jennings' Durango. He struck the Durango with such force that the Durango truck was pushed back approximately two feet. When Mr. Oakes drove his stolen Caprice through the south exit door, pushing Sergeant Jennings' Durango back two feet, Sergeant Jennings drew his firearm. At that point he realized that if his vehicle had been moved two feet, then Constable M,'s vehicle at the entrance had also been moved two feet and possibly injured or trapped Constable M. Sergeant Jennings was aware that he had two officers inside the car wash bay and for that reason dismissed any thought that he could use his Durango to push Mr. Oakes' vehicle to the far end of the bay and trap it more effectively between his vehicle and Constable M.'s Silverado. With officers inside the car wash bay, Sergeant Jennings realized such an approach could well injure the officers within the bay itself. Mr. Oakes then accelerated his vehicle backwards, using maximum acceleration

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Page 4 of 8 and impacted Constable M.'s truck for a second time. At that point Constable M. was trying to get the keys out of the truck to prevent the offender from stealing his vehicle if he escaped the car wash. Constable M. was kneeling on the seat and when the second impact occurred, he was almost launched into the back seat. His vehicle was moved back further as a result of the second impact. 12. After the second impact with Constable M.'s truck, Sergeant Jennings became very concerned that if Mr. Oakes got out of his end of the bay there was no real safe place he himself could retreat to and he would have to run across the laneway and jump over the retaining wall. At that point the Caprice then, for the fourth time in total, was driven forward, ramming Sergeant Jennings' Durango again pushing it further back. At this point Sergeant Jennings thought that it was probably inevitable that the Caprice was going to get out of the car wash bay, given the distance that his vehicle had been pushed back as a result of both impacts. When the Caprice came to rest after the fourth impact, it was still accelerating and was slowly nudging Sergeant Jennings' Durango out of the way in very small increments as the tires screeched and the car wash bay filled with white smoke. At that point Sergeant Jennings pointed his firearm at where he thought the driver's chest would be and began firing. He fired three rounds, about a half second apart. His training directed him to keep firing until the threat stopped and he did so. He believed that when he hit his intended target the engine would diminish or the silhouette of the driver, which he could see through the Plexiglas, would move. Sergeant Jennings saw that the passenger had both his hands up but the driver had not shifted or moved at all in his seat. The engine continued to roar and continued to nudge his vehicle forward slightly. Sergeant Jennings fired one further round and there was almost an immediate reduction in the throttle of the vehicle. Sergeant Jennings therefore discontinued firing, even though the engine was still roaring, since it had significantly reduced. The incident concluded when the other members of the HEAT Team removed the passenger, Mr. James, from the passenger's seat and shut off the ignition of the Caprice. Before shots were fired officers who testified were all concerned about their own safety as well as the safety of their Team members. In fact, Constable D. avoided injury by diving out of the way when the Caprice reversed the first time, but he continued to be concerned about the Team outside the car wash bay being crushed between the bay doors and Constable M.'s and Sergeant Jennings'

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Page 5 of 8 vehicles. Constable M. was struck by the door of his own vehicle and thrown inside his vehicle when it was rammed by the Caprice and according to Constable M.'s testimony, he was concerned that Mr. Oakes was going to kill him. Constable S. narrowly escaped injury as Sergeant Jennings' truck was pushed into his vehicle, just as he was exiting his vehicle. He was parked somewhat behind Sergeant Jennings as back-up. 17. From the evidence at the Inquiry, the officers had reason to believe their lives and safety were in danger given the violent driving pattern Mr. Oakes displayed within the car wash, when he repeatedly struck both the entrance and exit doors at high rates of speed, attempting to smash his way out of the car wash and then push his way past police vehicles surrounding the area. Not only was there concern for the officers themselves and their safety, but there was concern for public safety in the event Mr. Oakes was permitted to escape. He had demonstrated violent and dangerous driving within the car wash, and police had information he had used drugs before entering the car wash. On other occasions he had driven extremely dangerously when he was high on drugs according to police information. The police had reason to believe and did believe that Mr. Oakes was a motivated individual who didn't care about anything else except getting away from police. There was a real possibility that if Mr. Oakes had been permitted to escape, serious injury or death could have been caused to any member of the public who happened to be in the proximity of the car wash, whether such a person was a pedestrian or innocent motorist.

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THE ISSUE OF PREVENTION OF SIMILAR DEATHS 19. As a result of the death of Mr. Oakes, in addition to this Inquiry, there was an investigation undertaken by the Alberta Serious Incident Response Team in order to determine whether criminal charges or other sanctions ought to be taken with respect to Sergeant Jennings, who was the officer who shot and killed Mr. Oakes. The Fatality Inquiry received detailed evidence relating to this investigation which included reports from Collision Reconstructionists and Expert evidence regarding use of force from the Edmonton Police Service. It was determined, based on the totality of the evidence, that criminal charges or other sanctions ought not to be taken against Sergeant Jennings. At the request of the Court, the issue of whether other use of force options were available to the Calgary Police Service members with respect to this incident was explored. Doctor William Lewinski, a well known expert from the United

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Page 6 of 8 States based Force Science Institute gave evidence by video. Doctor Lewinski testified there was no other way to stop Mr. Oakes from attempting to exit the car wash and escape police in the circumstances of this case, other than to eliminate the threat which was the driver of the motor vehicle. Mr. Oakes was using the vehicle as a weapon and that weapon had the potential to cause significant harm to parties within the car wash bay (primarily police) or members of the public outside the car wash bay, if Mr. Oakes escaped. Sergeant Jennings was the only officer in a position to target the driver of the motor vehicle, Mr. Oakes, as he did. 21. There was considerable evidence at the Inquiry concerning whether the police could have fired warning shots, or even whether they could have shot at the tires of the vehicle or some other part of Mr. Oakes' body to stop the incident. The evidence at the Inquiry was that police officers are not trained nor authorized to fire warning shots. Doctor Lewinski testified that while a warning shot can work in some limited circumstances, the rationale behind the policy not to fire warning shots is that when a warning shot is not effective it can have deadly consequences. The shot may ricochet and an officer has no control over the direction of the ricochet, which may unintentionally hit the suspect or someone else. In addition, people who are mentally ill or chemically altered, such as Mr. Oakes was, might not understand the significance of a warning shot or they might misinterpret it and think the officer is actually shooting at them and may shoot back. Lastly, a warning shot might actually encourage fleeing behaviour. In the circumstances of this case, the evidence supports the conclusion that there was a reasonable likelihood a warning shot would have escalated Mr. Oakes efforts to escape, not cause him to stop, especially given his agitated state and the fact he was under the influence of drugs. With respect to shooting at the tires of the Caprice, CPS policy at the time prohibited firing at a moving vehicle. The rationale behind the policy was that a bullet is not going to stop or disable a vehicle. Doctor Lewinski confirmed that it would be very difficult to shoot at the moving tires on a vehicle within the narrow confines of the car wash bay. He further testified even if shooting at tires was permissible, depending upon the angle of the strike, the shot might be deflected causing unintended injury to others. If it did penetrate, it would create a small hole that at some point might cause the tire to deflate. However, determined individuals would continue to drive on the tires until the tires came off the rim and then would drive on the rims. At some point the vehicle may slow down, but it doesn't necessarily mean that it will stop the threat against either the officers in the bay or the public if a vehicle continued on its course for any distance. In this case, Doctor Lewinski testified that shooting the tires of

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Page 7 of 8 the Caprice would have no effect on someone like Mr. Oakes, who was determined to get away. Nor would it have protected the officers who were in close proximity to the vehicle Mr. Oakes was operating. 23. According to Doctor Lewinski, the circumstances of this case illustrate why police officers are trained to shoot to stop the threat and trained to shoot at the centre mass as opposed to shooting to wound. Shooting situations are inherently dynamic. They are visually and behaviourally complex and are characterized by actions and movement on the part of both the subject and the officer. Police officers are well-trained but not expert shooters. Sergeant Jennings had above average skill with respect to the use of his weapon, and it was undoubtedly a factor in police efforts to stop Mr. Oakes from leaving the car wash bay. In the opinion of Doctor Lewinski, it would have been almost impossible to shoot to wound, given the dynamic circumstances and the time it would take an officer to acquire their sight line and fire their weapon. According to Constable Forde, the Edmonton Police Service Expert concerning the use of force, the officers involved in the incident were left with few options. The potential to disengage and let the vehicle go was neither logistically feasible nor safe in a dynamic and rapidly unfolding situation. Allowing the vehicle to escape would have created an obvious hazard to other motorists or pedestrians in the fleeing vehicle's path. Ultimately, lethal force was necessary in order to gain control of the situation and end the confrontation, according to Constable Forde.

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CONCLUSION 25. There are no recommendations which may prevent similar deaths from occurring, considering the totality of the evidence called at the Inquiry. There was significant evidence that the officers were left with no option but the use of lethal force in this case. Shooting at tires would not have stopped the vehicle in time to eliminate the threat to police officers or members of the public, since vehicles do not stop immediately, even when tires are penetrated in this fashion. A vehicle keeps moving and at some point the tire flattens, but motivated individuals like Mr. Oakes continue to drive even after tires are flattened, and even on rims in efforts to escape. Hence shooting at the tire and penetrating one or more tires, would not have stopped the vehicle in time to avoid injury to those within the proximity of the car wash.

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Page 8 of 8 27. The evidence at the Inquiry supports the conclusion that an attempt to wound Mr. Oakes or fire a warning shot could have resulted in unexpected injury to others and would not have caused Mr. Oakes to stop his vehicle. Even if Mr. Oakes had been struck in some less lethal part of his body, the imminent nature of the threat he posed would not likely have stopped, given his agitated state and determination to escape. He would likely have kept driving. Accordingly, the evidence at the Fatality Inquiry supports the Calgary Police Service training and policy to shoot at the centre mass in circumstances where an imminent threat exists, as was the case involving Mr. Oakes. Nothing less, given time restraints and the dynamic nature of the situation would have eliminated the threat Mr. Oakes driving presented in time to protect police and the public. The fact that Sergeant Jennings shot at a moving vehicle contrary to police policy was not only justified in this case, but may well have prevented significant injury or death to both police officers and unsuspecting members of the public who may have been in the area had Mr. Oakes escaped the car wash bay in the stolen motor vehicle. The evidence is such that Mr. Oakes was nudging police vehicles out of his way and the possibility of escaping the car wash bay presented an imminent threat to police and members of the public. Mr. Oakes was using his car as a potentially lethal weapon. It was fortunate Sergeant Jennings possessed a greater than average skill level in the use of his weapon given the dynamic and complex situation he faced.

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Dated February 1, 2013 at Calgary, Alberta

___________________________________ S. L. Van de Veen, A Judge of the Provincial Court of Alberta.