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REPORTING · 29th November 2010
Merv Ritchie
One year after Cole Foos was shot repeatedly by a Smithers RCMP officer, taken into custody and charged with dangerous driving; he walked out of the Smithers Court house acquitted. At noon on Saturday, November 21, 2009, Foos was driving a red pick up through Smithers, which had been stolen from Salmon Arm. After first stopping for the RCMP and complying with their orders, Foos suddenly attempted to flee and was shot at five times by Constable Mosley. Four of the bullets hit him, puncturing his lungs, stomach and liver. Recovered from his injuries and aquitted, Foos is now expected to be taking civil action against the RCMP.

The Judge hearing the case in Smithers, Madam Justice Konigsberg, delivered her decision last Friday, November 26, 2010. She found that Foos’ reaction, attempting to flee after first complying, was due to what he perceived was an imminent threat to his life from an officer who was out of control, acting aggressively and/or was very agitated.

Terrace RCMP Staff Sergeant, Rob Pritchett, who reviewed the RCMP internal investigation after the BC Civil Liberties Association filed a complaint regarding the shooting, found the opposite; the officer felt a threat to his or other lives. His findings regarding the use of force concluded with a discussion on an acronym the RCMP are trained with, A.I.M. (ability, intent, means).

Officers, the letter to the BCCLA regarding Pritchett’s report states, are taught to think of this acronym when a ‘subject was demonstrating a threat of death or grievous bodily harm.’ Not intended to mean ‘Ready, AIM, Fire’, the letter explained how this acronym applied for Constable Mosley when faced with Foos.

Did the subject have the ‘Ability’ to cause death or grievous bodily harm? Yes, it concluded, Foos was in control of a motor vehicle.

Did the subject ‘Intend’ to cause death or grievous bodily harm? The point is mute, claims the report. As soon as Foos put the truck into gear, attempting to drive with the officer hanging from the passenger doorway, the situation changed from the initial assessment of a compliant subject to one threatening ‘death or grievous bodily harm’.

The last AIM issue is ‘Means’, what tools did the officer have at his disposal to prevent the ‘death or grievous bodily harm’? In this case the report determined the only quickly available tool was the revolver. What the report apparently didn’t mention was Constable Mosley’s revolver, which was raised and pointed straight at Foos for the entire duration of the ‘compliant’ subject’s detainment.

Almost all of the evidence given during the trial regarding Foos’ behaviour was that he was pleasant and cooperative. From the time he left Topley, after having a congenial discussion with the person who first suspected he was in a stolen truck, to the interactions with the officers who attended at the scene. Mosley spotted the truck on Highway 16 in Smithers after an alert was sent out to look for it. Called initially a ‘compliant subject’, Foos pulled over, when indicated to do so by Mosley, and followed all instructions. He put the truck in park, put his hands out the window, opened the door from the outside and being unable to exit the truck, as he had the seatbelt on, Foos couldn’t comply with this last demand.

Mosley, now accompanied by two back up officers, with his gun still raised at the ‘ready to fire’ position, not like the others with their revolvers lowered, moved to the passenger side of the truck to unfasten Foos’ seatbelt. While attempting to do this, continuing to yell orders, Mosley noticed a small pocket knife, which he removed from Foos’ pocket and tossed to the floor. As Mosley moved back to unfasten the seatbelt, still pointing his revolver, Foos claims he simply panicked for his life, pulled his hands back in the window and tried to get away from being shot.

The two other officers at the incident, Constables Oakes and Chamberlain both corroborated with Foos’ testimony that Mosley had his gun raised and ready. Oakes was at the driver’s door, after having reached in and unlocked it for Foos to open it, when Mosley started firing from the passenger side as Foos attempted to flee. As Justice Koenigsberg put it, ‘lacking the actual knowledge of where his cover officers were, contrary to police policy, when he discharged his firearm’. She also found that ‘Mr. Foos had a reasonable fear for his life and acted, although irrationally, consistent with someone in fight or flight mode who is in fear for his life’.

Pritchett’s review of the RCMP internal investigation failed to detail the ‘revolver at the ready’ when discussing the ‘Means’ available to reduce the potential of “death or grievous bodily harm”. This discussion, based on a separate investigation by Constable Solinski, involved why pepper spray couldn’t be used (close confines), why a baton couldn’t be used (no room, ineffective) and why a taser couldn’t be used (no time). It does however detail the revolver was fired in rapid succession, and as claimed by Mosley in the report, fired ‘until the threat had stopped’.

Foos spent the last year in custody after being released from hospital in December 2009. He plead guilty to the charge of possession of stolen property, which netted him three months incarceration, and with the dangerous driving charge acquittal, he was free to go.
man aquitted
Comment by e.a.f. on 9th December 2010
The province really needs an outside agency to look into police shootings, complaints, etc.
Shooting some one 4 times because the officer felt threatened and the other person didn't have a gun? Gee its time for the officer to get another job.
The R.C.M.P. in B.C. need to be held accountable to B.C. not Ottawa. Better yet, a provincial police force.
A simple remark
Comment by Arjunna on 7th December 2010
I see Denis that a simple remark that the shooting could have been avoided has created such a concern to some. It's so easy to say he deserved it... I'm not even going to try and weigh in on any more than saying that. You're holding your own quite well here Denis.. 3 against one... sounds familiar.
A great quote :)
Comment by Denis Gagné on 7th December 2010
"Too often we... enjoy the comfort of opinion without the discomfort of thought."
John F. Kennedy

The behavior displayed here is offensive, starting with insulting and sexist remarks about women and judges, followed by cruel suggestions that the man should have died, and ending with an attempt to control the conversation. One offensive comment was edited due to the language, that one was directed at myself. I thank you for your concern Steve, but I disagree, I think I am doing quite well and no one as yet refuted my argument, which was, "The shooting could have been prevented".
Comment by Steve Smyth on 6th December 2010
You have no argument. Adam nailed it - enough mollycoddling thieves and bandits

end of story
"Am I the victim or the crime" Graham & Weir
Comment by Denis Gagné on 5th December 2010
In this case I would argue that the police officer and the vehicle owner are crime victims, while the American man is victim of power imbalance and physical injuries.

Anger is always concerned with individuals, ... whereas hatred is directed also against classes: we all hate any thief and any informer. Moreover, anger can be cured by time; but hatred cannot. The one aims at giving pain to its object, the other at doing him harm; the angry man wants his victim to feel; the hater does not mind whether they feel or not. (Aristotle)
Comment by Adam Kirkwood on 4th December 2010
what victim? the moment he stole the truck he became a criminal. the moment he tried to drive away with a cop hanging off the truck he stole, he committed attempted murder which could very easily have become murder of a police officer had things gone differently.

the only victim is the next unfortunate person who has their vehicle stolen by this idot after he serves 3 minutes in jail, or gets off completely because the judge believes his sob story of misery and woe...

Victim... gimme a break...
Comment by Helmut Giesbrecht on 3rd December 2010
Next time someone is charged with dangerous driving after risking the life of a member of the police force is claim they panicked in fear of their life.
compassion is the key to improve our lives
Comment by Denis Gagné on 3rd December 2010
I think that the police officer did a poor job of preventing the shooting from happening and that he walked himself in an unsafe situation where his options became very limited. While this is my assessment I am not the judge in this case and that I accept her judgement. I also offer my best wishes to the police officer who is now in trouble over this serious mistake, a very bad day at work to say the least. I hope he will get over this and learn. He could come back stronger for having this experience, especially since he was extremely fortunate to be unharmed and that the victim survived the shooting.
I also offer my best wishes to the victim and hope that somehow he will also find his way to more compassion in his heart in order to improve his life and choices.
I think this incident could have been prevented in a number of ways, and that police officers are trained in non-violent conflict resolution and crisis intervention.
For one thing, I would suggest parking the cruiser in front, and the backup cruiser in back of the suspected vehicle, making any attempt to escape futile. Next I would suggest keeping calm, and if this officer was stressed or tired that day then he was not able to perform his duties safely, which is a work safety hazard. He could have asked his back up fellows to take over from there. The next step would have been to ensure the vehicle engine was stopped, and perhaps ask for the keys to be thrown out the window. Next, one officer comes in at the driver side, taser in hand, while another comes in passenger side, taser in hand, while the third one provides cover with a firearm. Both doors are opened simultaneously and the seat belt can be unlatched and thus the whole incident was avoided.
If this is too dangerous, I mean to approach the vehicle without protective cover/gear, then the officers could have kept their safe distance and use a megaphone to give directives, asking the suspect to step out of the vehicle and surrender. If non-compliant, simply wait, eventually he will have little choice but to come out, being trapped and parked in between cruisers... patience works wonders in addressing crisis situations.
Worst case scenario, shoot the tires and/or call for a roadblock.
The victim would then have been charge with vehicle theft and everybody is safe, justice is upheld for a better day. I think the key is that we need more compassion, more empathy in our society, above all else. It saddens me to no end to see people willfully causing or wishing harm to others. I don't think that the police officer went in the situation intending to cause harm, he just had a bad day, handled it poorly, and in the end was unlucky it turned out this way, and lucky that they are both alive. If something like that happened to me I know I would be doing some soul searching, as I suspect he has and will.
Comment by James Ippel on 2nd December 2010
Being a former Firearms Intructor, I agree with you. This Officer requires Remedial Training.
He obviously forgot to shoot at Centre of Mass.
For the uninformed, this means the "centre of the chest."
The law is an ass!
Comment by Rudi Peters on 1st December 2010
Given the state of our current legal system, it is my contention that you could shoot someone in the middle of the street and get off. Where is the common sense when it comes to judging people.

The only fault I find with the RCMP in this case is that he was a poor shoot. With that many rounds fired you think that at least one could have been fatal, less paper work.
Comment by Steve Smyth on 1st December 2010
I read it, I still agree with the other two posters

If YOU were hanging half in and out of a stolen car being driven away at high speed by a know thief with apparently very little regard for his own life, not to mention yours, what would you suggest?

Therapy? cuddles? maybe some green jello?

I know what id do and I commend the officers for their restraint
Read this
Comment by Shawn Ksisiiaks on 1st December 2010
Detailed account of the incident from RCMP.

Our legal systems a joke. One step behind our political system.

Comment by James Ippel on 30th November 2010
As Adam wrote-if he was'nt driving a stolen vehicle he would not have been stopped.
This individual placed himself in a postion that made him the object of police investigation. He knowingly placed himself in this position, and now he should accept the consequences.
We again must suffer the opinions of a misled liberal Judge who has no common sence. This is not the first female judge in BC who tends to make stupid decisions, and probably not the last.
Comment by Adam Kirkwood on 29th November 2010
if he wasn't driving a stolen truck, he never would have gotten pulled over. don't do stupid things and bad things don't happen to you.