Rinella v. Canada (Attorney General)

Rinella v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2024-10-02
Neutral citation
2024 FC 1541
File numbers
T-2638-22
Decision Content
Date: 20241002
Docket: T-2638-22
Citation: 2024 FC 1541
Ottawa, Ontario, October 2, 2024
PRESENT: The Honourable Mr. Justice Roy
BETWEEN:
MATTHIEU RINELLA
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] Mr. Matthieu Rinella, the applicant, joined the Royal Canadian Mounted Police [RCMP] for basic training on June 4, 2018. Once basic training was completed at the RCMP Depot Training Academy, he started a probation period of two years on December 4, 2018. In view of a number of incidents which took place during the probation period, Mr. Rinella’s discharge was confirmed by a RCMP Appeals Process Adjudicator on February 14, 2022. The Adjudicator’s decision is made the subject of a judicial review application pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7.
[2] I wish to stress at the outset that Mr. Rinella and his counsel did not object to the judgment and reasons in this case being provided in English. The Court raised the issue at the hearing of this judicial review application because Mr. Rinella authored the Notice of Application in this case in English, yet the memorandum of argument presented by the counsel then retained was in French and counsel addressed the Court in French. That was in spite of the Notice of Application requesting that the hearing be held in the English language.
[3] On the other hand, the record of decision relating to employment requirements for probationary members was produced in English, as was the decision under review by an adjudicator from the Recourse Review and Appeal Branch. Indeed, a confidentiality Order in this matter was produced by Associate Judge Tabib on March 1, 2023, in English. In the circumstances, it was resolved that the Court would provide its reasons in English with, of course, a French translation to follow.
[4] The judicial review application of the Adjudicator’s decision challenges it as contravening principles of procedural fairness, as being tainted by an error of law and as being “clearly” unreasonable. Although Rule 301 of the Federal Courts Rules, SOR/98-106, calls for “a complete and concise statement of the grounds intended to be argued”, the Notice of Application of December 15, 2022, was quite rudimentary. Nevertheless, there was no challenge launched and, at any rate, the memoranda of fact and law were precise in the development of the arguments.
I. The Notice of Application [5] The Notice of Application, although it is ostensibly with respect to the decision of the Adjudicator, gave way before the Court to an attack on the decision of the RCMP Administration and Personnel Officer, Superintendent Michel Gallant. The Notice of Application identifies the decision under review as “[i]n the decision the Adjudicator determined that his review of the Respondent’s decision does not identify reviewable errors that would warrant my intervention, in that I find his decision was not reached in contravention of the applicable principles of procedural fairness, is not tainted by an error of law, and is not clearly unreasonable” (para 2). We understand that the “Respondent” referred to by the Adjudicator is Superintendent Gallant. Mr. Rinella disagrees that the decision did not suffer from these issues: procedural fairness, error of law, clearly unreasonable.
[6] The problem, however, is that Mr. Rinella goes on to argue as his first ground for his judicial review application that it is the Adjudicator, whom he identifies as the “Final Authority” (Nicolas Gagné) as being guilty of the alleged sins of Mr. Gallant:
The grounds for the application are:
1. pursuant to sections 17, 18.1(4)(a), (b), (c), (d) and (f) of the Federal Courts Act, R.S.C. 1985, c. F-7 the Final Authority failed to observe a principle of natural justice, procedural fairness or other procedure that he was required by law to observe, or otherwise act upon, fettered or refused to exercise his jurisdiction or discretion in failing to find that the Applicant’s probationary discharge from the Royal Canadian Mounted Police contravened principles of procedural fairness, natural justice, involved errors of law, and was clearly unreasonable.
[7] The applicant goes on to allege grounds faulting the Gagné decision for having “erred in law in failing to consider relevant evidence before him” (para 3) and for the Gagné decision to be “so unreasonable having regard to the evidence properly before the Final Authority (Mr. Gagné) as to amount to an error of law” (para 4). The confusion between the decision under review (Mr. Gagné) and the decision which is the subject of an appeal (Mr. Gallant) made the examination of this matter rather unwieldly. The reality is that the Adjudicator (Mr. Gagné) reviewed the decision made by the Respondent (Mr. Gallant), on the three grounds that are allowed: procedural fairness, question of law and clearly unreasonable decision. Indeed, counsel for Mr. Rinella spent most of his presentation before the Court discussing Mr. Gallant’s decision, presumably in the hope that he could demonstrate that the Adjudicator erred in his conclusion that the Gallant decision was not to be impugned.
II. The legal framework applicable to the probationary discharge of an RCM policeman [8] The Royal Canadian Mounted Police Act, RSC 1985, c R-10 [RCMP Act], provides specifically for the probation of a person appointed as a member for a period established by the rules of the Commissioner.
[9] During that probationary period, the officer under probation may be discharged. It is subsection 9.4(1) that applies:
Discharge
Licenciement
9.4 (1) While a member is on probation, the Commissioner may discharge the member by notifying the member that the member will be discharged at the end of the notice period established by rules of the Commissioner. The member ceases to be a member at the end of that notice period.
9.4 (1) À tout moment au cours de la période de stage, le commissaire peut licencier un membre en l’avisant qu’il sera licencié au terme du délai de préavis fixé par règle établie par le commissaire. Le membre perd sa qualité de membre au terme de ce délai.
These rules are known as the Commissioner’s Standing Orders [CSO] (ss 2(2) of the RCMP Act).
[10] The RCMP Act delegates to the RCMP Commissioner the power to prescribe the probationary period (para 21(2)(a)) and the notice period referred to in ss 9.4(1). Parliament also confers on the Commissioner the power to make Standing Orders (rules) “respecting the decision to discharge a member under s 9.4 and the making of a complaint procedure in relation to the decision” (para 21(2)(b)).
[11] There are various CSOs. The CSO (Employment Requirements), at its Part 3, addresses the process to be followed for discharging a probationary member. The Commissioner may delegate to a “decision maker”, who is a member of the RCMP (s 2), the power to discharge a member who is on probation (s 13). That person in this case is Superintendent Gallant. The probationary period is fixed at two years (s 14) and the length of the period of the notice to be given is 14 days (s 15).
[12] It is at section 16 that we find the test for the discharge of a member on probation. Given its importance to these proceedings, I reproduce it in its entirety:
16. (1) The Commissioner may designate an officer or a person who holds an equivalent managerial position to be responsible for recommending the discharge of a member on probation.
16. (1) Le commissaire peut désigner un officier, ou une personne occupant un poste de direction équivalent, à titre de responsable pour recommander le licenciement d’un stagiaire.
(2) If a member on probation has failed to demonstrate their suitability to continue to serve as a member, the designated officer or person must immediately recommend to the decision maker, in writing, that the member be discharged.
(2) Le responsable recommande immédiatement par écrit au décideur de licencier le stagiaire qui n’a pas réussi à démontrer son aptitude à continuer d’agir à titre de membre.
(3) The decision maker must cause a notice of intent to be served on a member on probation if they intend to discharge the member under subsection 9.4(1) of the Act.
(3) Le décideur qui a l’intention de licencier un stagiaire en vertu du paragraphe 9.4(1) de la Loi lui fait signifier un avis à cet effet.
(4) The notice of intent must set out
(4) L’avis d’intention précise :
(a) the grounds on which the decision maker intends to discharge the member; and
a) les motifs sur lesquels le décideur a l’intention de se fonder pour licencier le stagiaire;
(b) the member’s rights under subsection (5).
b) les droits du stagiaire prévus au paragraphe (5).
(5) The member may, within 14 days after the day on which the notice of intent is served,
(5) Le stagiaire peut, dans les quatorze jours suivant la date de la signification de l’avis :
(a) provide a written response; or
a) soumettre une réponse écrite;
(b) request, in writing, an extension of time to provide a written response.
b) demander par écrit la prorogation du délai pour soumettre une réponse écrite.
(6) If, after the notice of intent is served but before the decision maker makes a decision under subsection 17(1), new information that may be relevant comes to the attention of the decision maker, the decision maker must cause the member to be served with a copy of that information. The member may, within seven days after the day on which the copy is served,
(6) Si de nouveaux renseignements pouvant être pertinents parviennent au décideur après la signification de l’avis d’intention, mais avant qu’une décision ne soit rendue en vertu du paragraphe 17(1), le décideur en fait signifier copie au stagiaire. Dans les sept jours suivant la date de la signification, le stagiaire peut :
(a) provide a written response; or
a) soumettre une réponse écrite;
(b) request, in writing, an extension of time to provide a written response.
b) demander par écrit la prorogation du délai pour soumettre une réponse écrite.
[my emphasis]
[13] Thus, there must be a recommendation made by a designated officer. As we shall see, there was such recommendation in our case by Inspector Sabourin. The test that is applied, the standard to be attained by a member on probation is that of suitability (“aptitude” in the French version) to continue to serve as a member. The CSO makes it an obligation of the designated officer to make immediately the recommendation to the decision maker for the discharge of the member on probation who has failed to demonstrate their suitability to continue as a member. Clearly there is no need to wait for the whole two-year probation period to be concluded before recommending the discharge.
[14] Following from the recommendation is the notice of intent to discharge the member. It is to be issued under the authority of a decision maker. The Decision Maker is Superintendent Gallant. The notice must state the grounds for the discharge of the member on probation, essentially why the member is deemed to have failed to demonstrate the suitability to continue as a member. The member on probation has 14 days to respond (an extension of time is possible).
[15] Even after the notice of intent has been issued by the decision maker, it remains possible to supplement the record if new information comes to the attention of the decision maker (para 16(6)). The member on probation will, of course, have to be notified of the new information and given an opportunity to provide a written response. That took place in the instant case.
[16] Once the “decision maker has sufficient information” (s 17), a decision is made. It is a binary decision: either retain (possibly with terms and conditions) or discharge the member on probation.
III. The preliminary recommendation/The facts [17] A preliminary recommendation to discharge Mr. Rinella was made on December 18, 2020 by Staff-Sergeant David Beaudoin who had supervising authority over Constable Rinella. The preliminary recommendation was made to Inspector Christian Sabourin who made the actual recommendation to discharge Mr. Rinella on February 15, 2021.
[18] S/Sgt Beaudoin, of the Integrated National Security Enforcement Team [INSET] in the C Division, found that there were very serious issues with the performance and the behaviour of Mr. Rinella despite attempts to correct the encountered problems. Follows a 30-page report detailing various incidents. These require a somewhat detailed presentation to understand the other three levels of decision.
[19] The applicant had 2 ½ years of policing experience prior to joining the RCMP. Although the probation period started in December 2018, it was interrupted on March 29, 2020. Constable Rinella was then reassigned to administrative duties as of April 15, 2020, following a Code of Conduct investigation which was launched with respect to one of the incidents described in S/Sgt Beaudoin’s report.
[20] S/Sgt Beaudoin reviewed (the Report is found in the Certified Tribunal Record [CTR], tab 15) a number of incidents considered through the lens of the applicant’s performance and behaviour. Even before being on probation, the final report from his training period included comments which, says S/Sgt Beaudoin, became recurring issues during his probationary period:
“In moving forward, Cadet Rinella is encourage [sic] to keep an open mind to new tactics and procedures” (p 3/30);
“At the time of this assessment he has attended learning assistance 7 times which is high. Cadet Rinella will have to focus his attention on his demeanour and attitude in the field” (p 3/30);
“Cadet Rinella has struggled to receive feedback over the course of training and had difficulty being accountable for his actions. Cadet Rinella needs to ensure he will continue to work on this area to show his commitment to self-improvement” (p 3/30).
[21] S/Sgt Beaudoin goes on to refer to six incidents in 2019 and 2020.
a)In March 2019, Mr. Rinella expressed an interest in an assignment to another RCMP detachment. The assignment was refused, yet Mr. Rinella raised the issue with a superintendent (without going through the proper hierarchy). Even after being advised that this did not conform with the proper RCMP policies, Mr. Rinella raised the same issue again, a few weeks later, with that same superintendent. He was again advised that that behaviour is not in line with the internal policies. This incident is seen as wilfully ignoring the process in place even after a member on probation was advised by his superior. That follows various warnings during his training in Regina. S/Sgt Beaudoin notes that the behaviour continued to deteriorate.
b)In May 2019, Mr. Rinella expressed the wish to take part in some training with the Emergency Response Team (“Groupe tactique d’intervention”). That was denied. He tried again in October 2019, even suggesting that he take holidays to do so. From the report we learn that Mr. Rinella registered for the training to take place in December 2019. It is only when the officer in charge of the Emergency Response Team training contacted the officer in charge of Mr. Rinella’s unit that a third refusal was made. It is noted in Mr. Beaudoin’s report that this incident shows that Mr. Rinella does not abide by the policies, procedures and practices. Furthermore, Constable Rinella claimed to have misunderstood, which tends to demonstrate “questionable integrity” in view of the clear directions given to him.
c)On March 18, 2020, Mr. Rinella is involved in an incident with a motorist who complained about the abuse of authority he claimed the applicant was guilty of. It was alleged he failed to “act with integrity, fairness and impartiality”, and he failed to “not compromise or abuse their authority, power or position” (Code of Conduct of the RCMP, SOR/2014-281, s 3.2). Mr. Rinella communicated with the police agency where the complaint had been initially lodged. It appears that Mr. Rinella was involved in a surveillance operation during which a citizen was the subject of an intervention during what is described as a competition between the two cars to pass other vehicles. Using the rotating lights, Mr. Rinella forced the person to stop and to identify himself, without identifying himself as a policeman. The S/Sgt’s report details his encounters with Mr. Rinella on March 27 and 30, 2020. Constable Rinella had not reported the incident and he did not take notes about the encounter, which is considered to be a failure of the most basic requirements of police work. He claimed to have taken action as a private citizen under the Highway Safety Code (over which the RCMP has no jurisdiction in the Province of Quebec), yet he considered much later after the fact laying a charge of dangerous driving under the Criminal Code. In fact, S/Sgt Beaudoin documents various contradictions in the evolving story given to him by Constable Rinella and to his immediate supervisor. Later on, he refused to provide his version to the investigator in charge of the disciplinary (Code of Conduct) investigation that had been launched.
The fact that Constable Rinella failed to produce a report in view of a significant incident involving the detention of a citizen and did not make the required notes about the incident is contrary to the policies and directions issued by the RCMP. That constitutes a performance issue that required immediate improvement in order to meet the exigencies of the position. Instead of acknowledging that much, Mr. Rinella argued that he was right.
In spite of the order given to Constable Rinella to refrain from discussing the incident with witnesses, he sought to obtain the details of the incident as reported by the plaintiff to a different police force: that was considered to be in breach of the directions given by his supervisors. In sum, Constable Rinella gave various explanations in response to the incident of March 18 which were in contradiction with each other; he wanted to charge a citizen with offenses after a complaint had been lodged against him; he did not produce a police report contemporaneously with the incident, and when he wrote the report, it was after he had found out about the version of events given by the complainant, thus acting in contravention to the order received not to do so. S/Sgt Beaudoin summed this up by saying that this shows a measure of questionable integrity. Moreover, Constable Rinella did not show a positive attitude throughout, which translates into the difficulty Constable Rinella has to improve his behaviour due to his lack of acceptance of feedback. This is not in line with the RCMP values which require that members take responsibility for their actions. This is made especially so as the applicant continued to argue that he would do it the same way in spite of being advised of the violation of rules.
d)The fourth incident occurred in the fall of 2020. In spite of his assignment to administrative duties, Mr. Rinella sought to take further training. S/Sgt Beaudoin, together with a colleague, met with Constable Rinella to advise him that in view of the ongoing Code of Conduct investigation, the two requests made are denied. Although he had been advised that the meeting was not to discuss the ongoing Code of Conduct investigation, Mr. Rinella persisted in seeking information about the investigation, including the role played by S/Sgt Beaudoin. That, writes S/Sgt Beaudoin, confirms the inability of Mr. Rinella to follow clear, simple and detailed instructions. This, again, reflects on his behaviour. Constable Rinella is portrayed as blaming the interlocutor who has not “understood” what he meant. The behaviour is said to be consistent with observations made since training. The constable does not take responsibility for his actions, which is contrary to the RCMP values that the organization wishes to foster. In a word, the blame is put on someone other than the applicant for the missteps he commits.
e)Being on administrative duties did not prevent Mr. Rinella’s peripheral involvement in a national security investigation his unit was conducting, although not taking part in the investigation proper. In late October 2020, Mr. Rinella was tasked with following vehicular movements through GPS readings. Constable Rinella was responsible for monitoring the GPS. The person under surveillance had left for a location far from their residence without Constable Rinella monitoring adequately and advising his chain of command, as he had to. His failure to conduct appropriate checks during a period of time was argued by Mr. Rinella as being because of a lack of clear explanations. Other team members did not appear to misunderstand the instructions. Mr Rinella was pulled off this investigation completely as his supervisors found his involvement in the work environment as being counter-productive in view of his attitude and behaviour.
The work to be performed was seen as being elementary. The performance of the duties was lacking. This shows, according to Mr. Beaudoin, the continued inability to abide by new procedures. Mr. Rinella also continued to display a refusal to take responsibility, leading to a showdown with his direct supervisor requiring the intervention of a superior.
f)In November 2020, a sixth incident took place. This time, many processes had been put in place since March 2020 to prevent, as much as possible, the spreading of the Covid-19 virus in the work place. At RCMP Headquarters in Montreal, these measures were made mandatory and made the subject of briefings where it was stressed that disciplinary measures would be taken where instructions were wilfully ignored. Among the measures taken were signs affixed on the floor providing the direction in which personnel were to walk in the workplace.
On November 2, 2020, S/Sgt Beaudoin advised Mr. Rinella that he was walking in the opposite direction from the arrows on the ground. Mr. Rinella turned around and responded that he did it because he had seen S/Sgt Beaudoin do the same thing, which suggested it was not that important.
The point of the matter is not that Mr. Rinella was going the wrong way. S/Sgt Beaudoin acknowledges that this may happen. It is rather that, instead of taking responsibility, Constable Rinella puts the blame on extraneous elements. Indeed, Constable Rinella was on administrative duties because of his failure to abide by the rules and policies: that tends to demonstrate that changes in his behaviour are not happening in spite of the numerous interventions up to that point.
[22] These incidents were seen as sufficient for S/Sgt Beaudoin to make the recommendation, on December 18, 2020, that Constable Rinella be discharged from the RCMP during his probationary period as having failed to demonstrate his suitability to continue to serve as a member. Mr. Beaudoin noted that the RCMP, through supervisors and management, have sought to address the failures witnessed during the period. However, the repeated failures go largely to the integrity and the refusal to abide by the policies of the RCMP. There is no supplementary training, concludes Mr. Beaudoin, that can be made available towards adhering to the values of the RCMP.
[23] The matter was referred to Inspector Christian Sabourin who is the designated officer to make the formal recommendaiton to the decision maker, Superintendent Michel Gallant. That recommendation was made on February 2, 2021, in a seven-page document.
IV. The recommendation to discharge by the Designated Officer [24] I have summarized the six incidents referred to by S/Sgt Beaudoin in some detail. Inspector Sabourin indicates in his report having received S/Sgt Beaudoin’s preliminary recommendation. Inspector Sabourin distilled the information some more, but his further summary is faithful to the information made available by S/Sgt Beaudoin as part of his preliminary recommendation. Inspector Sabourin then proceeds to provide the rationale for recommending the discharge of Constable Rinella for having failed to demonstrate his suitability to serve.
[25] It was already stressed during Mr. Rinella’s training that there were deficiencies which required attention and focus (see para 18 of these Reasons for Judgment). The designated officer refers to the fact that Constable Rinella did not accept the RCMP practices in view of his past experience of some 2 ½ years in policing. He certainly cannot now claim a lack of experience. The final report following basic training noted personality lacunae. Constable Rinella was advised that he had to concentrate on his attitude and demeanor as he does not accept feedback. It was noted that he does not accept responsibility for his actions. These comments were known by Mr. Rinella who signed the final report.
[26] Meetings between Mr. Rinella and his superiors show that he does not admit he was wrong and does not accept responsibility, trying to justify his actions by manipulating the information. His integrity and honesty, which may be compromised by his actions and omissions, do not seem to be a concern for him. The incidents reported by S/Sgt Beaudoin demonstrate that much. What was noted during basic training continued during the probation period as noted by his supervisors through the various reported incidents.
[27] There is concern that the actions of Constable Rinella in major police operations may have a negative impact on the reputation of the RCMP as well as on the operations themselves.
[28] As a law enforcement agency, the RCMP operates within the confines of the law in serving and protecting while respecting the organizational values. These are fundamental to the mission of the RCMP which must be carried out by each member. Although some incidents may seem minor, each of them reflects that Constable Rinella continues to behave in an inappropriate fashion. Integrity was lacking in some situations, yet he does not accept that he was wrong. In spite of clear and precise instructions from supervisors, the behaviour did not improve.
[29] Probation serves to assess skills, qualifications, capacity and ability, and suitability; at the end of the day, will the person be an asset to the organization? Mr. Rinella lacks integrity and honesty, which does not accord with the fundamental values of the RCMP. These can hardly be taught. Every RCMP employee must display behaviour which exemplifies the fundamental values.
[30] A member, who during probation is in breach of a Code of Conduct provision, may face discharge if the offence is serious enough, instead of being subjected to the conduct process of Part IV of the RCMP Act. To put it bluntly, there is no need to complete the disciplinary process during the probationary period if the breach of the Code of Conduct is significant enough. The Administration Manual, at Chapter 27.4, under the title “Probationary Members”, states:
3. 2. 2. If a probationary member contravenes a provision of the Code of Conduct during his/her probationary period, consider seeking the discharge of the probationary member if the contravention of the Code of Conduct may be serious enough to demonstrate the probationary member’s unsuitability to continue to serve as a member, as an alternative to Part IV of the RCMP Act.
Inspector Sabourin reports that the two Code of Conduct provisions which are alleged to have been infringed by Mr. Rinella in the incident involving the citizen are s 2.1 and s 3.2. They read:
2. RESPECT AND COURTESY
2. RESPECT ET COURTOISIE
2.1 Members treat every person with respect and courtesy and do not engage in discrimination or harassment.
2.1 La conduite des membres envers toute personne est empreinte de respect et de courtoisie; ils ne font pas prevue de discrimination ou de harcèlement.
3. RESPECT FOR THE LAW AND THE ADMINISTRATION OF JUSTICE
3. RESPECT DE LA LOI ET DE L’ADMINISTRATION DE LA JUSTICE
…
[…]
3.2 Members act with integrity, fairness and impartiality, and do not compromise or abuse their authority, power or position.
3.2 Les membres agissent avec intégrité, équité et impartialité sans abuser de leur autorité, de leur pouvoir ou de leur position ou les compromettre.
Inspector Sabourin advises that the Code of Conduct investigation is held in abeyance so that the RCMP can proceed with the process leading to the discharge if the recommendation he makes to that effect is followed.
V. Notice of Intent [31] The Notice of Intent to discharge Constable Rinella came on June 21, 2021. It replaced the original notice of intent of February 26, 2021. That original notice was further to Inspector Sabourin’s recommendation to discharge. The Modified Notice of Intent adds a further allegation concerning criminal charges laid against Constable Rinella for an incident allegedly happening on January 14, 2021. The Notice speaks of charges of assault (s 265 Criminal Code), assault with a weapon or causing bodily harm (s 267 Criminal Code), and breaking and entering (s 348 Criminal Code). The Notice goes on to state that Mr. Rinella was to appear in court on July 12, 2021. These criminal allegations, as well as a further Code of Conduct investigation commenced on April 27, 2021, concerning a different incident involving alleged breaches of the Oath of Secrecy and the Security of Information Act, RSC 1985, c 0-5 [SOIA], were added for the consideration of the Decision Maker. I will come back to these with some details further in these reasons.
VI. Decision Maker’s Decision [32] Superintendent Gallant, the Decision Maker, produced a substantial record of decision running for 41 pages. He referred extensively to the Administration Manual, together with the Commissioner’s Standing Orders concerned with Employment Requirements and Grievances and Appeals.
[33] It is noteworthy that the Decision Maker states the purpose of the probationary period and some of the evaluation factors to be considered. Probation serves the purpose of assessing the suitability of the member on probation, considering:
the reliability;
the compatibility with colleagues and clients;
the work requirements;
the ability to adhere to applicable policies, procedures, practices and the Code of Conduct; and
the probationary member’s character, integrity and attitude.
The Decision Maker operates pursuant to a delegation of authority from the Commissioner. The Decision Maker states that, following the preliminary recommendation from Mr. Rinella’s line officer (S/Sgt Beaudoin), and the recommendation to discharge from the designated officer, Inspector Sabourin, the Notice of Intent to Discharge a Probationary Member was served.
A. The process leading to the decision [34] The Decision Maker described what gave rise to a further incident, beyond the incidents reported by S/Sgt Beaudoin, which resulted in a Code of Conduct alleged violation.
[35] In the preparation of his response to the Notice of Intent, Constable Rinella requested to have access to his notes and emails. The access was granted and an extension of time of 30 more days to respond was granted to his counsel at the time.
[36] Upon reading the response, the Decision Maker noticed that Mr. Rinella had revealed the details of a national security investigation and the investigative techniques used in the course of the investigation.
[37] The Decision Maker expressed his concerns on April 22, 2021, and allowed Constable Rinella 10 days to provide his response. The Decision Maker supplied documents he claimed provided clear statements as to the mandatory requirements concerning the security of information:
forwarded him copies of his Engagement Document (RCMP A114Be), his Security Screening Certificate and Briefing Form (TBS/SCT 330-47), his Certificate of Appointment/Designation (RCMP 1800), and his Acknowledgement of Professional Responsibilities in the Royal Canadian Mounted Police Form (RCMP 6465e). These four documents were signed by Constable Rinella over the course of his employment. I also sent him copies of the RCMP policy in Operational Manual (OM), Chapter 25.2 “Investigator’s Notes” and of the RCMP policy in Security Manual (SM), Chapter 1.3 “Guidelines for Security of Information Act”.
(Decision, p 8/42)
[38] Following a request from counsel for Mr. Rinella, a further extension of time was granted on April 29 2021. In his email, Superintendent Gallant detailed his concerns with respect to this latest incident, which occurred since the early Notice of Intent. It appears that, in reading the material forwarded on behalf of Constable Rinella in response to the Notice of Intent, classified information, which was to remain classified, was disclosed by Mr. Rinella outside the framework created by the instruments referred to in paragraph 37 herein, which Constable Rinella had signed. These concerns were passed on to Mr. Beaudoin, by then Inspector Beaudoin, who initiated a Code of Conduct investigation concerning the disclosure of such sensitive information. Superintendent Gallant included this new disclosure incident as part of his decision to discharge Constable Rinella.
[39] Another extension of time, to June 1, 2021, was granted in view of the sending of 15 documents to Mr. Rinella and his counsel.
[40] On May 12, 2021, the Decision Maker was advised of a change of counsel to represent Constable Rinella. The new counsel sought a further extension of time (beyond June 1, 2021) because the full investigation report of the latest Code of Conduct investigation (disclosure of classified information) was not yet available.
[41] On June 7, 2021, an English version of the Code of Conduct Investigation Report regarding the public complaint (the incident of March 18, 2020) was forwarded to Mr. Rinella and his counsel. On June 16, the Decision Maker delivered the Code of Conduct Investigation Report regarding the unauthorized disclosure of sensitive and classified information to counsel for Constable Rinella. A modified Notice of Intent to Discharge, including now alleged criminal offences of assault and break and enter which were said to be related to a “domestic matter”, was given to Mr. Rinella and counsel on June 23, 2021. These charges, laid by the Sureté du Québec, stemmed from an incident allegedly taking place on January 14, 2021. Constable Rinella was arrested and charged. Thus, further to the initial Notice of Intent, two more incidents were to be considered by the Decision Maker: the disclosure of sensitive information and criminal charges laid against the applicant.
[42] Counsel for Mr. Rinella asked for the final investigation report on the domestic matter in an email of July 2. On July 8, the Decision Maker responded as to the availability of the report related to the domestic matter and the limited use that he may make of that incident:
I will first say that I will not provide a copy of the final investigation report for what you referred to as the domestic matter. I did not get a copy of that report and will not get one. The information provided to you that is relevant to that case was the initial information sheet that led to the laying of charges by the Crown that I sent you and Cst Rinella on 2021-06-23.
I, as the Decision Maker, have taken note of the fact that Cst Rinella was arrested for that very matter, and that the file was reviewed by a Crown Prosecutor who determined a reasonable probability for conviction, the threshold for laying charges. I will use that portion of information for what it is only and I do not intend to get into the specifics of the case in my review on the Discharge Request.
The final deadline for submissions was set for July 30, 2021. On that date, counsel for Constable Rinella delivered electronically 23 pages of submissions, together with attachments for a total of 360 pages.
B. The decision to discharge [43] The Decision Maker dismissed an argument made by Constable Rinella’s first counsel according to which, despite his reassignment to administrative duties, he was still able to perform the duties of a member on probation. As such, the probation period continued to run. The Decision Maker concluded rather that the probationary period was interrupted as of April 2020. The probation period remained interrupted and the matter of the dismissal during probation was still ongoing.
[44] The Decision Maker then proceeded to review the various incidents which constituted the basis for the recommendation to dismiss. He found that it was appropriate for Mr. Rinella to seek explanations from instructors during training for why the RCMP used methods which may differ from his training and experience as a police officer in Quebec: that is part of the learning process. To quote from the Decision Maker’s decision, “if cadet Rinella would not have met all standards at Depot [training], he would not have graduated” (p 27/42). The Decision Maker states that he will consider those observations in the training report only if they resurface during the probationary period.
[45] Mr. Rinella is not faulted either for showing eagerness to receive training with the Emergency Response Team at the Valleyfield Detachment. In that, the Decision Maker disagrees with the preliminary recommendation of S/Sgt Beaudoin (as he then was). However, Constable Rinella is seen as displaying a lack of judgment in insisting to discuss the situation with superintendents in inappropriate settings. Furthermore, his request to participate in the training during holidays he would take to that effect, after having been told it was too early in his young career, attracted this finding by the Decision Maker:
… The mere fact that he tried to go on training while on Annual Leave shows he did not measure the impact of his absence from work for that week alone, and even worse, considered asking his superiors for a release by having them acknowledge they would agree to the risk of injury to Constable Rinella while he is on the training. In my opinion, more than refusing to accept his superiors [sic] answers because they didn’t suit him, Constable Rinella shows a total disregard for his units and colleagues in trying by every means to reach his goals, regardless of the impact on anyone other than himself.
[46] The Decision Maker then addressed the complaint (p 28/42) made by a citizen concerning the encounter of March 18, 2020. Because there were two opposing versions of the event, the Decision Maker chose not to render a decision on the allegations made. It is to be remembered that a Code of Conduct process had been launched, which was held in abeyance pending the review on suitability. That is provided for in the Administration Manual (see para 30 herein). Thus, the issue is not whether the allegations are to be determined on a balance of probabilities to be founded or unfounded, but rather what was to be determined is whether the actions and attitude, in the course of events following the incident, are, on a balance of probabilities, displaying issues concerning the suitability of Constable Rinella to continue to serve as a member of the RCMP.
[47] The Decision Maker documented significant concerns concerning Constable Rinella’s suitability:
a)First, the incident of March 18, 2020, brings about a number of concerns. Although it is well known that police officers have a duty to prepare accurate, detailed and comprehensive notes as soon as possible after an investigation (Wood v Schaeffer, 2013 SCC 71, [2013] 3 SCR 1053), Constable Rinella failed to do so: it was only nine days after he was presented with a Conduct Mandate Letter about the incident that he provided an account of the encounter and traffic stop. Mr. Rinella had to be considered to already be an experienced police officer following training at École nationale de Police du Québec, serving in three different police services in the Pro