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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.