A Halifax Regional Police sergeant claims Chief Dan Kinsella has “subjected him to targeted intimidation, harassment and discrimination.”
But in 2022, Fong complained to the Halifax Board of Police Commissioners about the chief. Fong further accused Kinsella of being “deceitful” in an interview as part of the board’s investigation. And Fong has asked a Nova Scotia Supreme Court justice to take a second look at the board’s decision to dismiss his complaint.
Nasha Nijhawan, Fong’s lawyer, filed for judicial review on July 18. There’s a hearing scheduled for Sept. 19.
Attached to the filing is correspondence from Coun. Becky Kent, chair of the Halifax Board of Police Commissioners, which is responsible for investigating complaints against the chief. In an email and letter to Fong, in which she routinely misspells his first name, Kent outlines his complaint and the board’s investigation, conducted by lawyer Michael Brooker.
“The Board of Police Commissioners met in camera on June 14th, 2023 to consider your written allegations of misconduct on the part of Chief Dan Kinsella dated November 15th, 2022 and June 6th, 2023,” Kent wrote.
‘Is Fong fucking with me now?’
Fong, according to Kent’s attached letter, “alleged that his issues with Chief Kinsella began in February of 2022 and related to his responsibility of managing matters relating to HRP issued mobile devices.”
The sergeant alleged he was asked to “go against normal protocols” to procure mobile phones for certain staff, apparently the chief. Fong said Kinsella accused him of not following protocol, and of intentionally targeting staff in the corporate affairs office of HRP.
The letter said Neera Ritcey, director of corporate affairs, issued an order for a mobile phone, and Deputy Chief Reid McCoombs directed Fong “to order the best phone he could for Chief Kinsella.”
“Sgt. Fong alleged that as a result of the mobile phone issues, he became the subject of targeted intimidation and harassment by Chief Kinsella,” Kent wrote.
“He referred to an incident several days later when he was approached by Deputy Chief Reid McCoombs regarding Chief Kinsella’s concerns about a police officer who Sgt. Fong had spoken to that morning regarding a requisition for a new mobile phone. The police officer had received instructions from Sgt. Fong to proceed to the executive area to have a Commissioned Officer sign his authorization for a new phone and thereafter, the police officer happened upon Chief Kinsella near his office and he signed the form. Shortly thereafter, Chief Kinsella allegedly called Deputy Chief McCoombs into his office and exclaimed ‘is Fong fucking with me now?'”
An ‘unjust transfer’
Management later transferred Fong from his position in the Property and Evidence section of HRP to the traffic division. He described that as an “unjust transfer,” related to “his participation in dialogue with his Property & Evidence peers across the country and his involvement in a meeting regarding a police evidence auction.”
Kinsella claimed to have had no part in the transfer.
Later, Fong’s former subordinates in the Property and Evidence section nominated him for the municipal chief administrative officer’s “Award of Excellence.” Kinsella refused to sign off on the nomination.
“According to the complaint, Sgt. Fong was advised by Deputy Chief McCoombs that the nomination could not go through for consideration as Chief Kinsella was concerned that it was orchestrated to make him look bad and to get even for his transfer from Property & Evidence,” Kent wrote.
Kinsella told the board’s investigator the form was incomplete.
But McCoombs said he and Supt. Dean Simmonds wanted to support the nomination. Kinsella “was ‘not very pleased with his decision’ as there were certain things on the nomination form that Sgt. Fong had allegedly achieved and ‘the Chief didn’t believe that all of those were accurate.'”
“He advised that Chief Kinsella indicated that if the nomination was returned to him with proper signatures, he would have to ‘send it to the CAO with me not supporting it,'” Kent wrote.
Kinsella’s lawyer argued Fong filed his complaints too late. There’s a six-month time limit.
“Sgt. Fong has taken the position that Chief Kinsella engaged in a pattern of personal harassment or discriminatory conduct against him beginning in early 2022 and culminating on June 16, 2022. He has taken the position that it was not until the June 16, 2022 meeting with Deputy Chief McCoombs that he became aware of the alleged disciplinary defaults by Chief Kinsella and accordingly, the limitation period commenced on that date,” Kent wrote.
While it considered the complaints, the board ultimately sided with Kinsella.
The board, which Kent incorrectly calls “the commission,” dismissed all of Fong’s complaints:
The Commission is satisfied that the evidence gathered during the course of the investigation does not establish that the Chief committed a disciplinary default for the following reasons:
a. the Commission is not satisfied that Chief Kinsella engaged in a pattern of conduct that was intimidating, harassing or discriminatory and as such, the discoverability principle is not applicable to extend the limitation period for the first four aspects of the complaint. ln the result, the first four allegations of the complaint are dismissed as they are limitation period barred.
b. ln the alternative, Sgt. Fong has not established on a balance of probabilities, the proof of which is on him, that any of the first four instances of alleged conduct on the part of Chief Kinsella constituted a breach of the Code of Conduct and as such, a disciplinary default and in the result, the first four allegations of the complaint are dismissed.
c. Sgt. Fong has not established on a balance of probabilities, the proof of which is on him, that the two remaining allegations of the complaint of alleged conduct on the part of Chief Kinsella (relating to Sgt. Fong’s transfer from the Property & Evidence Section and the nomination for a CAO Award of Excellence) constituted a breach of the Code of Conduct and as such, a disciplinary default. ln the result, the two remaining allegations of the complaint are dismissed.
Fong later alleged the chief lied to Brooker during the interview process, and the board dismissed that complaint as well. It passed this motion during its June 14 in camera session:
Having received a written allegation by Reagan Fong dated June 6, 2023 of certain disciplinary defaults against Chief Dan Kinsella, alleging that the Chief was deceitful in the interview evidence that he provided during the investigation of Regan Fong’s previous complaint dated November 15th, 2022, as well as having considered the investigator’s report, including the finding that both Chief Kinsella and Deputy Chief Reid McCoombs presented as credible in providing their interview evidence, the Board of Police Commissioners finds:
- That an investigator not be appointed to investigate the allegation at this time;
- That the Commission is not satisfied on the basis of the evidence provided that the Chief committed a disciplinary default;
- That the written allegation is dismissed.
Nijhawan, Fong’s lawyer, sought judicial review of just that last decision, citing three grounds:
- The Respondent BoPC breached their duty of procedural fairness by failing to designate a person as an investigator to investigate the allegation as required by s. 46(1) of the Police Regulations.
- The Respondent BoPC breached their duty of procedural fairness by dismissing the allegation without receiving an investigator’s report as required by s. 51 of the Police Regulations.
- The decision of the BoPC to dismiss the complaint without investigation and on the grounds that Chief Kinsella “presented as credible in providing [his] interview evidence” was unreasonable.
“The applicant requests an order remitting the allegation back to the BoPC for investigation and reconsideration,” Nijhawan wrote.