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 Provincial Court

in the City of Calgary , in the Province of Alberta, (City, Town or Village) (Name of City, Town, Village)

on the 21st to the 25th day of November , 2011 , (and by adjournment year

on the 6th day of June , 2012 ), year

before The Honourable, S. L. Van de Veen , a Provincial Court Judge,

into the death of Travis Douglas Oakes 33 (Name in Full) (Age)

of 808 Abbeydale Drive N.E., Calgary, Alberta and the following findings were made: (Residence)

Date and Time of Death: March 18, 2009 at 6:40 a.m.

Place: Foothills Medical Centre, Calgary, Alberta

Medical Cause of Death: (“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

J0338 (2007/03)

Circumstances under which Death occurred:

See attached

Recommendations for the prevention of similar deaths:

See attached

DATED February 1, 2013 ,

at Calgary , Alberta. Original signed by

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

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Throughout this Report the identification of the members of the covert undercoverpolice 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 forthe High Enforcement Auto Theft (HEAT) Team, a covert police unit whoseobjective is to locate stolen vehicles, covertly follow them, and safely arrest thedriver of the stolen vehicle once that person is a reasonable distance from thevehicle.

2. The autopsy revealed the fatal shot entered the deceased’s right temple causingsignificant injuries to the brain and skull. There was a second gunshot wound tothe right side of the head which was more superficial, and a third gunshotwound to the right shoulder. The right shoulder wound caused a significantamount of blood loss to the left chest cavity but would not have beenimmediately fatal.

3. On March 17th and18th, 2009, the HEAT Team was comprised of severalofficers, all driving various unmarked police vehicles as well as Constable W.and his police dog, who travelled with Constable D (working in an undercovercapacity at the time) in his unmarked police vehicle. The Team had thefollowing information regarding Mr. Oakes, which came from an e-mailprepared by Detective R. and reads as follows:

"Travis Oakes has been terrorizing 3 and 7 Districts. Hehas over 20 CC Warrants for 08, 86, 16, etc. Has beendriving a 1086 (stolen vehicle) 1991 Chevy Caprice, lightgrey … has been swapping 34 plates on a daily basis,sometimes 2 per day. He has been in about 4 reported1080's. When HEATTed up he drives like a completeretard. Was doing over 120 K down Centre Street and 12Avenue 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 21:07hours when Constable R. observed the stolen vehicle operated by Mr. Oakes,

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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 HEATTeam engaged in surveillance of the Caprice from 21:07 hours on March 17th to03:10 hours on March 18th, approximately six hours. During surveillance Mr.Oakes was observed to drive slowly into parking lots occupied by 711's, GasStations, etc. and appear to be "casing" these businesses. He stopped to meetvarious individuals very briefly and conducted hand to hand exchanges,behaviour consistent with drug transactions. He was also seen to steal fromvarious newspaper boxes. At 01:48 on March 18th, 2009 it appeared Mr. Oakeswas 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 crackcocaine approximately an hour before they went to the car wash where Mr.Oakes was shot. The toxicology report in evidence from the MedicalExaminer's Office found cocaine in his system, at levels indicating he had usedcocaine five or six times prior to his death.

5. Throughout the six hour surveillance, at no time was Mr. Oakes far enoughaway from the Caprice to permit the HEAT Team to attempt a safe arrest. Atapproximately 0:300 on March 18th, 2009, while driving the Caprice, Mr. Oakesand his passenger, Bryan James, entered the Western Pride Car Wash, a multiplebay manual car wash facility. The entrance doors to each bay of the car washare 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 lotsurrounding the car wash was also well lit. Once Mr. Oakes drove his vehicleinto one of the car wash bays, the entrance or north bay door closed. Policedetermined 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 theenclosed area. Police reasoned Mr. Oakes would be outside his car washing itwhich would give police the opportunity to arrest him.

6. Constable D. and Constable W. pulled into the bay immediately to the right ofMr. Oakes' vehicle. The hope was that Constable W.’s police dog could preventMr. Oakes from getting back into the vehicle as an arrest was attempted. At thesame time as Constable D. drove into the bay next to Mr. Oakes, the policepositioned their two largest vehicles outside the entrance and exit doors of thecar wash in order to prevent any possibility that the deceased could exit the carwash in the stolen vehicle. The largest vehicles were Sergeant Jennings' DodgeDurango and Constable M.’s Chevrolet Truck. In essence, police surroundedboth the entrance and exits of the car wash with both vehicles and other policepersonnel.

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7. As Constable D. exited his vehicle within the car wash and went around to thenorth doorway separating the bays, he had his Taser out. Constable W. got outof the passenger's side of Constable D.'s truck and went to the south doorwaynear the exit door with his police service dog. Sergeant Jennings illuminated thered and blue police lights inside the grill of his Durango (located outside thesouth exit door of the car wash) and locked the doors of his vehicle after exitingit. At this point police announced their presence and directed the deceased toshow his hands.

8. 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 beingchallenged by the police and told to show his hands, the deceased placed thestolen 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 withConstable M.'s Silverado which was located outside the north entrance door ofthe car wash. At this point Constable D. had to dive out of the way into the baythat his vehicle was located in. Constable D. holstered his Taser and drew hisfirearm. Mr. Oakes' vehicle had come through the Plexiglas entrance door ofthe car wash and struck the front of Constable M.'s truck at a time whenConstable M. was standing between the driver's door and the actual entrance tohis truck. When his truck was struck the pillar area of the truck came back andhit him and knocked him to the ground.

9. After the stolen Caprice struck the north entrance door and Constable M.'sSilverado, Mr. Oakes stopped the vehicle abruptly, then put the vehicle intodrive 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 waspushed back approximately two feet.

10. When Mr. Oakes drove his stolen Caprice through the south exit door, pushingSergeant Jennings' Durango back two feet, Sergeant Jennings drew his firearm. At that point he realized that if his vehicle had been moved two feet, thenConstable M,'s vehicle at the entrance had also been moved two feet andpossibly injured or trapped Constable M. Sergeant Jennings was aware that hehad two officers inside the car wash bay and for that reason dismissed anythought that he could use his Durango to push Mr. Oakes' vehicle to the far endof the bay and trap it more effectively between his vehicle and Constable M.'sSilverado. With officers inside the car wash bay, Sergeant Jennings realizedsuch an approach could well injure the officers within the bay itself.

11. Mr. Oakes then accelerated his vehicle backwards, using maximum acceleration

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and impacted Constable M.'s truck for a second time. At that point ConstableM. was trying to get the keys out of the truck to prevent the offender fromstealing his vehicle if he escaped the car wash. Constable M. was kneeling onthe seat and when the second impact occurred, he was almost launched into theback 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 becamevery concerned that if Mr. Oakes got out of his end of the bay there was no realsafe place he himself could retreat to and he would have to run across thelaneway and jump over the retaining wall. At that point the Caprice then, forthe fourth time in total, was driven forward, ramming Sergeant Jennings'Durango again pushing it further back.

13. At this point Sergeant Jennings thought that it was probably inevitable that theCaprice was going to get out of the car wash bay, given the distance that hisvehicle had been pushed back as a result of both impacts. When the Capricecame to rest after the fourth impact, it was still accelerating and was slowlynudging Sergeant Jennings' Durango out of the way in very small increments asthe tires screeched and the car wash bay filled with white smoke.

14. At that point Sergeant Jennings pointed his firearm at where he thought thedriver's chest would be and began firing. He fired three rounds, about a halfsecond apart. His training directed him to keep firing until the threat stoppedand he did so. He believed that when he hit his intended target the engine woulddiminish or the silhouette of the driver, which he could see through thePlexiglas, would move. Sergeant Jennings saw that the passenger had both hishands up but the driver had not shifted or moved at all in his seat. The enginecontinued to roar and continued to nudge his vehicle forward slightly. SergeantJennings fired one further round and there was almost an immediate reduction inthe throttle of the vehicle. Sergeant Jennings therefore discontinued firing, eventhough the engine was still roaring, since it had significantly reduced.

15. The incident concluded when the other members of the HEAT Team removedthe passenger, Mr. James, from the passenger's seat and shut off the ignition ofthe Caprice.

16. Before shots were fired officers who testified were all concerned about theirown 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 firsttime, but he continued to be concerned about the Team outside the car wash baybeing crushed between the bay doors and Constable M.'s and Sergeant Jennings'

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vehicles. Constable M. was struck by the door of his own vehicle and throwninside his vehicle when it was rammed by the Caprice and according toConstable M.'s testimony, he was concerned that Mr. Oakes was going to killhim. Constable S. narrowly escaped injury as Sergeant Jennings' truck waspushed into his vehicle, just as he was exiting his vehicle. He was parkedsomewhat behind Sergeant Jennings as back-up.

17. From the evidence at the Inquiry, the officers had reason to believe their livesand safety were in danger given the violent driving pattern Mr. Oakes displayedwithin the car wash, when he repeatedly struck both the entrance and exit doorsat high rates of speed, attempting to smash his way out of the car wash and thenpush his way past police vehicles surrounding the area.

18. Not only was there concern for the officers themselves and their safety, but therewas concern for public safety in the event Mr. Oakes was permitted to escape. He had demonstrated violent and dangerous driving within the car wash, andpolice had information he had used drugs before entering the car wash. Onother occasions he had driven extremely dangerously when he was high ondrugs according to police information. The police had reason to believe and didbelieve that Mr. Oakes was a motivated individual who didn't care aboutanything else except getting away from police. There was a real possibility thatif Mr. Oakes had been permitted to escape, serious injury or death could havebeen caused to any member of the public who happened to be in the proximityof the car wash, whether such a person was a pedestrian or innocent motorist.

THE ISSUE OF PREVENTION OF SIMILAR DEATHS

19. As a result of the death of Mr. Oakes, in addition to this Inquiry, there was aninvestigation undertaken by the Alberta Serious Incident Response Team inorder to determine whether criminal charges or other sanctions ought to be takenwith respect to Sergeant Jennings, who was the officer who shot and killed Mr.Oakes. The Fatality Inquiry received detailed evidence relating to thisinvestigation which included reports from Collision Reconstructionists andExpert evidence regarding use of force from the Edmonton Police Service. Itwas determined, based on the totality of the evidence, that criminal charges orother sanctions ought not to be taken against Sergeant Jennings.

20. At the request of the Court, the issue of whether other use of force options wereavailable to the Calgary Police Service members with respect to this incidentwas explored. Doctor William Lewinski, a well known expert from the United

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States based Force Science Institute gave evidence by video. Doctor Lewinskitestified there was no other way to stop Mr. Oakes from attempting to exit thecar wash and escape police in the circumstances of this case, other than toeliminate the threat which was the driver of the motor vehicle. Mr. Oakes wasusing the vehicle as a weapon and that weapon had the potential to causesignificant harm to parties within the car wash bay (primarily police) ormembers of the public outside the car wash bay, if Mr. Oakes escaped. SergeantJennings was the only officer in a position to target the driver of the motorvehicle, Mr. Oakes, as he did.

21. There was considerable evidence at the Inquiry concerning whether the policecould have fired warning shots, or even whether they could have shot at the tiresof the vehicle or some other part of Mr. Oakes' body to stop the incident. Theevidence at the Inquiry was that police officers are not trained nor authorized tofire warning shots. Doctor Lewinski testified that while a warning shot canwork in some limited circumstances, the rationale behind the policy not to firewarning shots is that when a warning shot is not effective it can have deadlyconsequences. The shot may ricochet and an officer has no control over thedirection of the ricochet, which may unintentionally hit the suspect or someoneelse. 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 theymight misinterpret it and think the officer is actually shooting at them and mayshoot back. Lastly, a warning shot might actually encourage fleeing behaviour. In the circumstances of this case, the evidence supports the conclusion that therewas a reasonable likelihood a warning shot would have escalated Mr. Oakes’efforts to escape, not cause him to stop, especially given his agitated state andthe fact he was under the influence of drugs.

22. With respect to shooting at the tires of the Caprice, CPS policy at the timeprohibited firing at a moving vehicle. The rationale behind the policy was that abullet is not going to stop or disable a vehicle. Doctor Lewinski confirmed thatit would be very difficult to shoot at the moving tires on a vehicle within thenarrow confines of the car wash bay. He further testified even if shooting attires was permissible, depending upon the angle of the strike, the shot might bedeflected causing unintended injury to others. If it did penetrate, it would createa 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 cameoff the rim and then would drive on the rims. At some point the vehicle mayslow down, but it doesn't necessarily mean that it will stop the threat againsteither the officers in the bay or the public if a vehicle continued on its course forany distance. In this case, Doctor Lewinski testified that shooting the tires of

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the Caprice would have no effect on someone like Mr. Oakes, who wasdetermined to get away. Nor would it have protected the officers who were inclose proximity to the vehicle Mr. Oakes was operating.

23. According to Doctor Lewinski, the circumstances of this case illustrate whypolice officers are trained to shoot to stop the threat and trained to shoot at thecentre mass as opposed to shooting to wound. Shooting situations are inherentlydynamic. They are visually and behaviourally complex and are characterized byactions and movement on the part of both the subject and the officer. Policeofficers are well-trained but not expert shooters. Sergeant Jennings had aboveaverage skill with respect to the use of his weapon, and it was undoubtedly afactor in police efforts to stop Mr. Oakes from leaving the car wash bay. In theopinion of Doctor Lewinski, it would have been almost impossible to shoot towound, given the dynamic circumstances and the time it would take an officer toacquire their sight line and fire their weapon.

24. According to Constable Forde, the Edmonton Police Service Expert concerningthe 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 feasiblenor safe in a dynamic and rapidly unfolding situation. Allowing the vehicle toescape would have created an obvious hazard to other motorists or pedestriansin the fleeing vehicle's path. Ultimately, lethal force was necessary in order togain control of the situation and end the confrontation, according to ConstableForde.

CONCLUSION

25. There are no recommendations which may prevent similar deaths fromoccurring, considering the totality of the evidence called at the Inquiry.

26. There was significant evidence that the officers were left with no option but theuse of lethal force in this case. Shooting at tires would not have stopped thevehicle in time to eliminate the threat to police officers or members of thepublic, since vehicles do not stop immediately, even when tires are penetrated inthis fashion. A vehicle keeps moving and at some point the tire flattens, butmotivated individuals like Mr. Oakes continue to drive even after tires areflattened, and even on rims in efforts to escape. Hence shooting at the tire andpenetrating one or more tires, would not have stopped the vehicle in time toavoid injury to those within the proximity of the car wash.

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27. The evidence at the Inquiry supports the conclusion that an attempt to woundMr. Oakes or fire a warning shot could have resulted in unexpected injury toothers 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 natureof the threat he posed would not likely have stopped, given his agitated state anddetermination to escape. He would likely have kept driving. Accordingly, theevidence at the Fatality Inquiry supports the Calgary Police Service training andpolicy to shoot at the centre mass in circumstances where an imminent threatexists, as was the case involving Mr. Oakes. Nothing less, given time restraintsand the dynamic nature of the situation would have eliminated the threat Mr.Oakes’ driving presented in time to protect police and the public.

28. The fact that Sergeant Jennings shot at a moving vehicle contrary to policepolicy was not only justified in this case, but may well have preventedsignificant injury or death to both police officers and unsuspecting members ofthe public who may have been in the area had Mr. Oakes escaped the car washbay in the stolen motor vehicle. The evidence is such that Mr. Oakes wasnudging police vehicles out of his way and the possibility of escaping the carwash 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 fortunateSergeant Jennings possessed a greater than average skill level in the use of hisweapon given the dynamic and complex situation he faced.

Dated February 1, 2013 at Calgary, Alberta

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