FPSLREB Decisions
Decision Information
Termination (disciplinary) - Indefinite suspension - Fraud - Customs officer involved in smuggling operation - Credibility - the grievor, a customs officer at a border station next to the U.S.A., was suspended without pay pending an investigation into an alcohol smuggling operation - as a result of the investigation, the grievor's employment was terminated - the grievor denied any involvement and sought rescission of his suspension and termination - the evidence called on behalf of the employer consisted mainly of accounts of members of the Royal Canadian Mounted Police and of persons involved in driving trucks containing contraband liquor - the employer's witnesses contended that the contraband was brought into Canada with the aid of the grievor - the grievor maintained that he was not involved in the operations and suggested that the employer's key witness had fabricated his account of events which had transpired - there was no dispute that the smuggling did take place and that the grievor was on duty at the time in question - the adjudicator found that the witnesses called on behalf of the grievor were not credible while the employer's evidence was overwhelming and left virtually no room for doubt as to the grievor's guilt - thus the suspension and termination were justified. Grievances denied.
Decision Content
Files: 166-2-26614 & 26615 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN JOHN PAUL MACKENZIE Grievor and TREASURY BOARD (Revenue Canada - Customs, Excise & Taxation)
Employer
Before: P. Chodos, Deputy Chairperson For the Grievor: Barry Done, Public Service Alliance of Canada For the Employer: Ronald Snyder, Counsel Heard at Hamilton, Ontario, November 25 to 29, 1996 and Niagara Falls, Ontario, December 3 to 5, 1996.
Decision Page 1 DECISION The grievor had been employed as a Customs Inspector (PM-1) at the Whirlpool Bridge at Niagara Falls, Ontario for approximately nineteen and a half years until his discharge on January 20, 1995. Prior to his discharge Mr. MacKenzie was indefinitely suspended without pay effective November 11, 1994 “pending the outcome of an investigation into allegations that you are in breach of trust and involved in a collusion action facilitating a smuggling operation.” (Exhibit E-9). The letter of discharge (Exhibit E-10) specifically alleges that the grievor was involved in “the illegal importation of 1,036 cases of alcohol into Canada on January 13 and 14 while working at the Whirlpool Bridge.” The grievor denies any involvement in smuggling activity, and is seeking the rescission of his suspension and discharge. Customs Inspectors work on a fifty-six day shift schedule, each shift consisting of twelve hours; at the Whirlpool Bridge the Inspectors rotate through three to six different positions on each shift. Ms. Barbara Lemire, a Customs Superintendent at the Whirlpool Bridge and Mr. MacKenzie’s immediate supervisor, testified that each day she prepares the rotation schedule, which she posts up to four hours prior to the commencement of a shift; the rotation schedule identifies where every inspector on duty during that particular day would be working each hour of his or her shift. Ms. Lemire identified Exhibit E-3, a selected number of daily rotation schedules from the period October to January 14, 1994. Ms. Lemire stated that normally Customs Officers are given two half hour lunch breaks during their twelve hour shift; if they request it, they can be given a one hour lunch break instead. The January 13th daily schedule shows Mr. MacKenzie as having taken lunch from 11:00 to 11:30 p.m. The January 14th rotation schedule shows Mr. MacKenzie as working on “P-1”, the primary or truck lane (sometimes referred to as the centre lane) from 12:40 a.m. to 1:20 a.m. Ms. Lemire noted that all trucks are required to go to the P-1 lane.
In April, 1993 the Customs and Excise Section of the R.C.M.P. Detachment in Niagara Falls received an Investigation Report from the R.C.M.P. Subdivision in Newmarket. This report stated the following: (Exhibit E-11) 1. Milton C&E section has been advised by a confidential human source of proven reliability that Doug L.N.U., (i.e. last name unknown) a Revenue Canada Customs inspector working at a port of entry in the Niagara Region is being
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Decision Page 2 paid to assist a Toronto area organization in the unlawful importation of spirits from the United States into Canada.
2. According to the source, during a typical importation, Howard L.N.U., who is related to Doug L.N.U., determines when and where Doug is working. Howard L.N.U. then escorts the driver(s) and the load to Doug L.N.U. who allows the spirits to be unlawfully imported.
3. Milton C&E section, assisted by the confidential human source, seized approximately 2000 cases of unlawfully imported spirits from this organization.
Subsequent to this memorandum the Niagara Falls Detachment was advised that there was no further information available concerning the identities of either “Doug” or “Howard”. Corporal Michael Watters, who was in charge of the Customs and Excise Section of the R.C.M.P. in Niagara Falls testified that on January 13, 1994 at 2:33 a.m. he received a call from Corporal Matheson of the Newmarket Detachment requesting Corporal Watters to meet him at Fort Erie, Ontario to assist in a surveillance. Corporal Watters picked up an unmarked police vehicle, a 1991 blue four door Pontiac, Ontario Licence Number 174-NEW. This car was equipped with a police radio and a “fireball” which is a red signal placed on top of a vehicle for emergency purposes. Corporal Watters drove to Fort Erie; he was accompanied by Constable Blair Pemberton who proceeded in another vehicle. They eventually joined Special Agent Robert Leary of the United States Bureau of Alcohol, Tobacco and Firearms who had been following a tractor-trailer, which eventually ended up at an unbonded warehouse on Tiff Street in Buffalo, New York. Corporal Watters joined Agent Leary and others in conducting a surveillance of the tractor-trailer at this location.
At 2:40 p.m. two rental trucks with Ontario plates pulled into the yard; one was a Budget Rent-A-Truck, the second had U-Haul markings; at 4:00 p.m. Constable Pete Phillips and Constable Willie Hébert arrived at the Tiff Street location in separate cars; another Budget rental truck was also observed, as well as a pick up truck. Corporal Watters turned over his blue Pontiac to Constable Phillips and Constable Hébert took over the car which Constable Phillips had been driving. It would appear that the two Budget trucks and the U-Haul parked in the vicinity of the larger tractor-trailer and goods were transferred from the tractor-trailer to the three vehicles. At 10:35 p.m. three rental trucks left the Tiff Street warehouse and
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Decision Page 3 ultimately arrived at 11:15 p.m. at a truck stop in Niagara Falls, New York. This restaurant, known as Junior's, is approximately five to ten minutes drive to the Whirlpool Bridge. At 11:30 p.m. the pick up truck which had been at the warehouse was also observed at the restaurant. The driver of the truck was in the company of three other individuals; the pickup truck driver was later identified as Mr. Chuck Laubisch of New York State; one of the other persons was identified as Mr. Howard Greenwood.
At 12:35 a.m. all the trucks started up; one of the Budget rental trucks, which was driven by Mr. Leslie Maxwell, proceeded to the Whirlpool Bridge, paid the toll and crossed over to the other side; this truck was followed by Constable Phillips who was still driving the blue Pontiac given to him by Corporal Watters. The truck stopped at the Customs booth in the centre lane or P 1, also referred to as the truck lane. The vehicle then continued on through Customs into Niagara Falls, Ontario after stopping very briefly at the Customs booth. Prior to this, Constable Phillips observed an inspector, who was identified as the grievor, Paul MacKenzie, closing the right hand lane and opening the centre lane. Constable Phillips observed as well that the Customs Officer had a pad or a clipboard and appeared to be writing on it. Constable Phillips then pulled up at the Customs booth; Mr. MacKenzie asked him the usual questions, that is where he had been, how long had he been out of the country, about three or four questions in total. He stated that while Mr. MacKenzie appeared to be quite chipper at first, his demeanour changed after Constable Phillips spoke with him. Constable Phillips thought it was possible that Mr. MacKenzie may have seen his note book, fireball and police radio in his car when Mr. MacKenzie was speaking with him. At 1:25 a.m. Constable Phillips stopped the Budget truck he was following on the QEW Highway; he noticed that the truck appeared to be fully loaded, as it was sitting low on its tires. Later that morning a search warrant was obtained, the locks to the back of the truck were broken and 650 cases of liquor were found. Constable Phillips stated that it was only after he was radioed that the third truck had been seized at the border that he decided to stop the Budget truck.
Approximately ten minutes after the first truck had left the restaurant, the second Budget truck proceeded to the Whirlpool Bridge, paid the toll, crossed the bridge, and approached the centre lane booth. Constable Hébert was immediately behind this vehicle in his unmarked car. He spoke with Bridge Toll Collector, Public Service Staff Relations Board
Decision Page 4 Mr. Walter Wisniewski, who told him that the truck that had just passed was loaded and was not going to clear customs.
Mr. Wisniewski testified that he recalled two small white vans with writing on the side crossing the bridge during his shift which began at 11:00 p.m. on January 13. The first van driver told him that he was empty and he charged him accordingly; the second van driver indicated it was full; he told the driver that Customs would not clear him at that time of night, that he should go by the Queenston Bridge. He recalls that the driver replied that he wanted to cross, and he paid him the toll for a loaded truck. Mr. Wisniewski also recalled that an R.C.M.P. car came by shortly thereafter, the driver of this car told him that the truck ahead was smuggling whisky. Mr. Wisniewski did not recall whether he had provided receipts to the drivers of the two vans; he testified that he normally gives receipts to any commercial vehicles, or any cars which request them.
Constable Hébert observed a Customs Officer proceeding from the far booth to the truck lane. The Customs Officer came from the booth; he appeared to be writing on a clipboard or notepad; he stood next to the driver’s side, spoke with the driver briefly and allowed him to proceed. At this point Constable Hébert was stopped at a stop sign 40 to 100 feet from the booth. At this point he could not identify the Customs Inspector; he was directed to the Customs booth to the right of the centre lane. As he pulled up he recognized Mr. MacKenzie whom he had met previously on numerous occasions, on a professional basis. According to Constable Hébert, Mr. MacKenzie appeared surprised to see him; they had a casual conversation; Mr. MacKenzie did not ask if he had anything to declare. At this point Constable Hébert became concerned about losing sight of the truck; he then told Mr. MacKenzie that: “I have to go, I’m following that truck.” Mr. MacKenzie had a surprised look on his face and said: “Oh, Okay.” Constable Hébert radioed Corporal Matheson, who advised him to go back to the bridge and wait for the third truck. Constable Hébert then returned to the bridge and, as he arrived, he saw the U-Haul proceeding to the secondary area. He noticed two other Customs Inspectors with the truck; he advised them of the R.C.M.P.’s suspicion that the truck had liquor, and told them of the two other trucks that had gone through. Constable Hébert also testified that he might have said that he thought a Customs Officer was “dirty”. He observed that he had no valid reasons for his comments, but was frustrated that two Public Service Staff Relations Board
Decision Page 5 trucks had gone through without being inspected. The driver of the U-Haul was placed under arrest, he was later identified as Randy Hobbins. When the truck was unlocked, a large quantity of liquor was discovered; Constable Hébert then radioed this information to Corporal Matheson who indicated that they would take down the two trucks that had gone through Customs.
In cross-examination, Constable Hébert stated that he came to suspect Mr. MacKenzie because he had let the two trucks pass through, and because, after seeing Constable Hébert he pulled over the U-Haul. Constable Hébert acknowledged that he should not have made the comments to Customs officials concerning his suspicions about Mr. MacKenzie. Constable Hébert maintained that it made no difference to the investigation had all three trucks been pulled up at Customs. He agreed that he had stated in the criminal proceedings that they would have followed the vehicles to their destination, if need be. He also maintained that he did not say at trial that this was a “controlled delivery”. His reference to “controlled delivery” at trial was made in the sense of indicating that the control of the investigation was in the hands of the Newmarket R.C.M.P. Detachment. Constable Hébert stated that no one at Customs had forewarning of these deliveries. Constable Hébert also stated that since 1994 he has been posted at Toronto Airport, which was his chosen posting.
Constable Kim Floyd testified that he and Corporal Matheson were at a hotel parking lot near the Whirlpool Bridge when they were advised over the radio by Constable Hébert that the three trucks were moving from Junior’s parking lot. They observed the first truck cross the bridge, followed by Constable Phillips; they remained at the bridge. At 1:02 a.m. they observed a second vehicle pull up at Customs and proceed through. It was Mr. Floyd’s observation, based on several years’ experience driving trucks, that the vehicle appeared to be heavily loaded, that is, it was leaning to one side and appeared to be sluggish. They then observed Constable Hébert’s vehicle at Customs. A Constable Fraser began following the second truck on the Ontario side; Constable Floyd was advised that Constable Fraser had stopped the second truck. He joined Constable Fraser who was parked behind a Budget Rent-a-Truck; he was advised that the driver was under arrest; he looked in the back which was loaded with liquor. Constable Floyd then drove the seized vehicle back to the Niagara Detachment. The truck was then secured. It was ascertained that this truck was driven by a Mr. Victor Zip. Constable Floyd testified that this operation Public Service Staff Relations Board
Decision Page 6 was not considered a “controlled delivery”; it was his understanding that if the trucks were stopped at Customs, so be it, if not, the R.C.M.P. would take the necessary action. He acknowledged that on January 13 at 3:45 p.m. either he or Corporal Matheson had telephoned Mr. Paul Weaver, who at the time was Manager for Interdiction and Intelligence of the Hamilton region; the purpose of the call was to advise him that there was a load of liquor on the U.S. side, which was under surveillance; they told him that they wanted events to unfold in a “natural fashion”.
Constable Hébert recalls speaking with Superintendent Barb Lemire, the Customs supervisor on duty that night, following the seizure of the U-Haul; he stated that he may have again said that he thought Mr. MacKenzie was “dirty”; Mr. Hébert noted that she did not appreciate these comments. Mr. Weaver testified that on January 14 at 8:30 a.m., the Chief called him because Ms. Lemire had concerns about comments made by Constable Hébert; he also called Mr. Weaver to advise of the seizure.
Mr. Weaver identified a document entitled Regional Operating Principles on Enforcement (Exhibit E-40) which among other things identifies the contacts to be made when there is to be a controlled delivery. It notes that “The decision to initiate a controlled delivery of commercial quantities of other (than drugs or weapons) contraband must be authorized by the Manager of Investigations or the Manager of Interdiction & Intelligence, or their designate, and may only proceed with the participation of the R.C.M.P.” Mr. Weaver also referred to the Customs Enforcement manual which provides that the Manager of Interdiction and Intelligence is responsible for approving Customs’ participation in all controlled deliveries. If there is to be a controlled delivery, the manager would call the Interdiction Manager at the site and explain the situation. With the concurrence of the site manager, they would contact line staff and would determine how to proceed. Mr. Weaver noted that the Enforcement Manual is available to all inspectors; if an inspector suspects there is contraband, he is required to refer the vehicle to the secondary area, that is he has no discretion to allow the vehicle to go through if he is not satisfied with the declaration made by the driver.
Mr. Weaver testified that on January 12th he was made aware by the R.C.M.P. that there was a load of liquor under surveillance in the U.S. which they believed was
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Decision Page 7 heading into Canada. No one was sure at that time where they were going. In the late afternoon of January 13th Corporal Matheson advised him that the liquor had been broken down in smaller units and was at Junior’s Restaurant. He was told to sit tight, that they were just alerting him that it was there. When he met with the Chief of the Rainbow Bridge, Mr. Brent Gallagher, at 8:30 a.m. on January 14th, he discovered that Mr. Gallagher had contacted a Mr. Miller of the R.C.M.P. concerning allegations made by an R.C.M.P. officer about a Customs Inspector; Mr. Gallagher told Mr. Miller that it was not appropriate conduct and Mr. Miller agreed. Mr. Weaver stated that he never advised anyone at the Whirlpool Bridge that a controlled delivery was in place.
Mr. Victor Zip was the driver of the second Budget rental truck which had been stopped by Constable Fraser. Mr. Zip, who had been a member of the Hamilton Police Force from 1968 to 1982, testified that he met a Mr. Paul Adams in December, 1993 when Mr. Zip was a partner in a security investigation and alarm installation company known as Steeltown Security. Mr. Adams had contracted with his company to install an alarm system at his house; Mr. Adams told Mr. Zip that he wanted the alarm system because two associates of his in a liquor smuggling operation had broken into his house and stole $600,000. in cash, which were the proceeds from the smuggling operation. He provided this information to Mr. Zip as Mr. Adams wanted him to discover the whereabouts of the two individuals in question, known as Mr. Clark and Mr. Krusto. In January 1994, Mr. Zip had indicated to Mr. Adams that he would welcome the opportunity to drive a truck for him, as he was very much in need of some ready cash; at that time, Mr. Zip’s wife had been arrested for trying to commit suicide and there was a $1,000. dollars committal warrant outstanding. Mr. Adams, who was subpoenaed by the employer and testified at length in these proceedings, was the ringleader of the smuggling operation in question, and among other things provided the financing associated with the January 14th operation, as well as other similar activities prior to that date. Mr. Adams agreed to pay Mr. Zip $1,000.00 for driving a truck loaded with alcohol from the U.S. into Canada via the Whirlpool Bridge. According to Mr. Zip, Mr. Adams explained that the operation had minimal risk as a border guard had been paid off. On January 11th, 1994 Mr. Adams contacted Mr. Zip, and gave him a $500. deposit for the rental of a five ton truck to be picked up on January 12th. He was instructed to drive to Niagara Falls, New York and meet a “Chuck” at Junior’s Restaurant. Mr. Zip arrived at Junior’s Restaurant in Niagara Falls
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Decision Page 8 around noon on January 13th. At the restaurant he met Mr. Randy Hobbins whom he had met previously; it soon became apparent to Mr. Zip that Mr. Hobbins was also involved in this operation. They and another man who was identified as “Maxwell” met with “Chuck” who was driving a smaller truck. Mr. Zip stated that they followed Chuck’s truck to a warehouse in Buffalo and unloaded the liquor from the tractor-trailer into the three rental trucks. They then drove back to Junior’s Restaurant to wait for an opportunity to cross the border. He observed that Chuck had a cell phone which he used on two or three occasions that day.
Chuck told the drivers it was time to cross and that they would be going over in 15 minute intervals, and that he would guide them over. He reaffirmed instructions that Mr. Zip had received from Mr. Adams to say to the border guard that he was “empty”. Mr. Zip stated that the first truck to leave was driven by Maxwell who left just after midnight; at 12:20 a.m. Mr. Zip left; when he arrived at the toll operator booth at the Whirlpool Bridge he indicated to the collector that he had maximum weight; the operator told him that Canadian Customs would not let him cross into Canada. He paid the toll and proceeded anyway. Mr. Zip stated that he pulled up to the Customs booth on the centre lane; the border guard came out of his booth to his window and asked him what he had on, to which Mr. Zip replied: “Empty”; the guard said: “Empty?”, Mr. Zip again replied: “Empty.” According to Mr. Zip the border guard then said: “If you see a dark blue Pontiac, licence number 174-NEW, it’s been around here all night; it’s the heat”. Mr. Zip testified that he scratched down the number on the back of the receipt which he had received from the bridge authority when he had crossed into the United States the previous afternoon (Exhibit E-19). Mr. Zip stated that he wrote it down on the console of the truck and was not looking as he took down the number; he decided that it was useless information as he was not going to try to outrun a police car. Mr. Zip stated that he had never seen the border guard before, whom he identified as Mr. MacKenzie. He had picked out his photo from a group of pictures of border guards which he was shown by the R.C.M.P. (Exhibit E-21). Mr. Zip stated that he was stopped by the R.C.M.P. on the QEW outside St. Catharines, Ontario. The R.C.M.P. took his truck and he had no further access to it. Corporal Watters testified that the receipt was found by the R.C.M.P. when they searched the truck upon Mr. Zip’s arrest; the receipt with numbers and letters scrawled on the back was found
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Decision Page 9 at that time and placed in the file; after Mr. Zip gave his statement they went back to the file and found the receipt in question.
In cross-examination Mr. Zip acknowledged that he was given a commitment that he would not be prosecuted in return for providing a statement. Mr. Zip also admitted that he had testified on behalf of the Crown at Mr. MacKenzie’s trial. Mr. Zip stated that he was offered no reward or threat for his participation in these proceedings and has no interest in the outcome of this case. He agreed that as a former policemen that he had been involved in surveillance on a number of occasions and was probably able to identify unmarked police cars better than the general public. Mr. Zip stated that he did not advise police when Mr. Adams told him about his smuggling operation and that he felt no obligation to do so. He stated that he was hoping to do 10 to 12 truck runs for Mr. Adams and thereby raise $10,000. to $12,000. One of the reasons for him cooperating with the police was that Mr. Adams had reneged on a deal to take care of any of his lawyer's fees and other expenses. He stated that Mr. MacKenzie asked him none of the usual declaration questions; he stated his truck was stopped at the Customs booth, although he does not recall if it was in park; he did not recall he had the pen that he used to note down the licence number; he believes the receipt which he used for that purpose was beside him at the time. In his statement to the R.C.M.P. he indicated that the police car that stopped him on the QEW was a blue Pontiac. Mr. Zip also stated that he felt Mr. MacKenzie should have tipped them off if he knew the police were involved, and he was upset by his failure to do so. Mr. Zip was not prosecuted for his part in the smuggling operation, nor was Mr. Adams, who also provided a statement to the police.
Mr. Paul Adams testified that from October, 1993 to January 14, 1994 he had placed orders for 14 shipments of alcohol through a Mr. John Pattullo who was working for a Mr. Gary Nicholls who operates a firm known as Lang Exports; Mr. Nicholls had connections to a number of distilleries in the United States. Initially, in the summer of 1993, Mr. Ken Clark and Pat Krusto arranged to have the alcohol brought over the border using gravel trucks. Seven truck loads made it across the border, three did not; the trailers were seized in Niagara Falls, New York by the Bureau of Alcohol, Tobacco and Firearms. In early October 1993 he was advised by Messrs. Clark and Krusto that they could get alcohol across the border as they had access to a Customs officer at the Whirlpool Bridge who would cooperate. He was told Public Service Staff Relations Board
Decision Page 10 that it would cost him $18,000. to get it through the border, part of which was to be spent on paying off the Customs Inspector. According to Mr. Adams the arrangement was that when they were given a date when the border guard was on duty, they would have the trucks loaded and wait at Junior’s Restaurant on the American side. Then they would meet someone known as the “golfer” who would receive a call on his pager giving them the exact time that they could cross the border.
Adams met the “golfer” at a Burger King in Niagara Falls, Ontario accompanied by Messrs. Clark and Krusto. He later learned, at Mr. MacKenzie’s pre-trial, that the “golfer”'s name was Howard Greenwood. Mr. Greenwood referred to the border guard as “the girl”; Mr. Adams never became aware of who that person was. He met the “golfer” on one or two other occasions and was contacted by him several times by phone; Mr. Adams would call a pager number or the “golfer” would call him on a cell phone; the purpose of the calls was to alert him when the “window” was open to arrange another load to go through the truck lane at the border. Once he was aware of what day they could cross, he would notify Messrs. Clark and Krusto and they would arrange to meet Mr. Greenwood at Junior’s Restaurant. Mr. Adams went over into the U.S. a couple of times when the shipments were going through; he would meet at Junior’s Restaurant with Messrs. Clark and Krusto and the “golfer”; Mr. Greenwood would be waiting for a call on his pager; he would receive a code through his pager; on one occasion he was in Mr. Greenwood’s presence when the beeper went off; Mr. Greenwood then told him: “We have one hour to make the bridge.”
Mr. Adams stated that after December 20th he had hired the drivers to drive the trucks over the border. He met Mr. Zip on December 21st when he had contracted him to install an alarm system; he was also under the impression that Mr. Zip was a private investigator and hired him to find Messrs. Clark and Krusto who had absconded with his money. He indicated to Mr. Zip where the money had come from. Mr. Zip told him that he would be interested in driving for him and he paid Mr. Zip $1,000. for one trip, and $500. cash for the rental of the truck.
On January 12, 1994 he met with Chuck Laubisch and Mr. Greenwood at Junior’s Restaurant; Mr. Greenwood advised that the window would be open on January 13th and 14th from 8:00 p.m. until 8:00 a.m. Mr. Adams waited in Hamilton for the shipments; when they did not arrive he went to the bridge at Niagara Falls and
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Decision Page 11 saw one of the rented trucks sitting by the Customs office. He assumed that the other vehicles were likely seized, and drove away. Mr. Adams stated that his profit was approximately $50,000. per shipment. He indicated that he was promised no rewards nor received any threats in consequence of his testifying in this proceeding.
In cross-examination Mr. Adams acknowledged that he was selling illegally imported liquor in 1992 and had done so continuously until January 1994; he noted that he would still be in that business if he had the funds to finance the operation. Mr. Adams stated that in December 1994 he was caught bringing in liquor through Cornwall; he then revealed his involvement with respect to the Whirlpool Bridge operations. He was charged as a result of the Cornwall transaction and was fined $2,000. He was told that if he cooperated that he would be shown leniency. Mr. Adams stated that he had given a statement to the R.C.M.P. to the effect that he was led to believe there were other persons providing windows of opportunity at the Whirlpool Bridge. This information had come to him from natives at the Six Nations Reserve; he never pursued this further. He had no first hand information that there was a border guard involved in the smuggling operation. He never asked Mr. Greenwood who he was giving the money to. He witnessed the “golfer” receiving a payoff in respect of the six shipments; his recollection is that this occurred either the last week of November or the first week of December. This was the first time that he had heard reference to “the girl”. Mr. Adams stated that it was his understanding that only one border guard was involved in this operation and that they were being notified when this particular border guard was on shift.
Mr. Howard Martin Greenwood was subpoenaed by the employer; he is currently employed as a driver for the Niagara Falls Casino. For the past three years he has been the common law husband of Janet Pascuzzo, who is the sister of Mr. MacKenzie’s wife, Theresa. He stated that he had met Mr. MacKenzie through Janet Pascuzzo; they had a casual relationship, meeting at the occasional family gathering; the relationship was amicable prior to him being charged. Mr. Greenwood was charged and convicted of conspiracy to smuggle and breach of trust and sentenced to three months imprisonment.
Mr. Greenwood testified that in early January, 1993 he had gone in his car with Theresa MacKenzie to an Indian reservation in the United States to purchase gas and
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Decision Page 12 30 cartons of cigarettes. They came back into Canada across the Whirlpool Bridge; Mr. MacKenzie was in the booth in the lane that they used to cross into Canada; he had casual conversation with him at the booth; Mr. MacKenzie asked him no questions about having anything to declare. They proceeded through and he took the cartons to Toronto where he sold them. He made $300. profit on this transaction which he split with Mr. MacKenzie. Mr. Greenwood stated that the idea to smuggle the cigarettes was a “mutual” one. On another occasion, also in January 1993, he and Mr. MacKenzie drove to a liquor store in Niagara Falls, New York in Mr. MacKenzie’s car, a Hyundai Pony; Mr. Greenwood purchased 60 bottles of liquor which he placed in the trunk of Mr. MacKenzie’s car; they drove back across the Whirlpool Bridge; Mr. MacKenzie knew the Customs Inspector; they had a casual conversation, made no declaration and then left. After they crossed the border the bottles were placed in the trunk of Mr. Greenwood’s car who sold them in Toronto and made a $600. profit which he again split with Mr. MacKenzie.
According to Mr. Greenwood, Mr. MacKenzie had suggested to him that they make arrangements to smuggle larger quantities of liquor across the Whirlpool Bridge. Mr. Greenwood found a connection, a group of people known as “John”, “Leo” and “Harry”; they insisted on meeting the Customs Officer involved in the smuggling in order to ensure that he was not an undercover policeman; Messrs. MacKenzie and Greenwood arranged to meet with this group at a Tim Horton’s doughnut shop in Niagara Falls in February or March, 1993. Mr. Greenwood introduced Mr. MacKenzie to his three contacts; “Leo” took Mr. MacKenzie out to a van parked outside the doughnut shop and proceeded to search Mr. MacKenzie for any communication devices. According to Mr. Greenwood, Mr. MacKenzie told the group that he did not want his name used, that he wanted to be referred to as “Doug”; Mr. MacKenzie told Mr. Greenwood that there was a Customs Officer named Doug Lauder whom Mr. MacKenzie did not like.
Mr. Greenwood explained that when Mr. MacKenzie was at the Whirlpool Bridge, he would page Mr. Greenwood on Mr. Greenwood’s beeper to tell him when he would be working at the primary booth; Mr. Greenwood testified that he would receive a page an hour to two hours before Mr. MacKenzie would be working at the primary booth. Mr. Greenwood stated that upon receiving the call, he would drive across the Whirlpool Bridge and meet with the drivers of five ton trucks at a warehouse in Public Service Staff Relations Board
Decision Page 13 Buffalo. According to Mr. Greenwood, his role would be to lead the truck across the bridge; he would go across first to advise Mr. MacKenzie about which truck is carrying the contraband. Mr. Greenwood testified that he received $3,000. from “John”; his share was $1,000. and Mr. MacKenzie received $2,000. Mr. MacKenzie had told Mr. Greenwood that the drivers should advise the toll booth operator that they were loaded, and pay the full toll; they were then to tell Mr. MacKenzie at the primary booth, when he asked if they were empty or loaded, to reply, “empty”.
Mr. Greenwood said that he and Mr. MacKenzie received in total for all the shipments, between $10,000. and $12,000., with Mr. MacKenzie receiving a 2 to 1 split. Mr. Greenwood advised that he stopped doing business with “John” and “Leo” after four or five shipments, as they were busted for their last shipment and had not paid them. Messrs. Greenwood and MacKenzie decided that they should establish another connection to continue the smuggling operation; Mr. MacKenzie told Mr. Greenwood that he did not want to meet anyone this time. Mr. Greenwood stated that between October, 1993 and January, 1994, they participated in between eight and ten smuggling operations across the Whirlpool Bridge, including the January 14th shipment. According to Greenwood, Mr. MacKenzie was involved in all the shipments.
The operation continued in a similar fashion after they discontinued their relationship with “John” and “Leo”; that is, Mr. MacKenzie would page Mr. Greenwood an hour before; on some occasions he would actually come over to Mr. Greenwood’s house on Stamford Street which Mr. Greenwood noted is a two to five minute drive from the bridge. Mr. Greenwood recalled that on two or three occasions Mr. MacKenzie had appeared in person at his residence to advise him of the time to make the shipments. The grievor had given Mr. Greenwood a code sheet, with numbers assigned to each time period; Mr. Greenwood stated that this was a precaution that Mr. MacKenzie had suggested in case the pager was bugged.
Mr. Greenwood recalled that on the evening of January 13th Mr. MacKenzie came to his residence at 11:00 p.m. to advise him that he would be at the primary booth between 12:30 to 1:30 a.m.; he also directed that the trucks drive over at ten minute intervals; he told Mr. Greenwood that he had stopped at a Blockbuster video store to get videos for the staff and had also stopped to purchase coffee. Mr. Greenwood stated that his common-law wife, Janet Pascuzzo, was at home that
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Decision Page 14 night and was present when Mr. MacKenzie spoke with him. Mr. Greenwood then telephoned Mr. Laubisch in Niagara Falls, New York, and arranged to meet him at a Bob Evans restaurant in Niagara Falls, a couple of minutes away from Junior’s restaurant. He advised Mr. Laubisch when Mr. MacKenzie would be at the primary booth, and what the driver should tell the Bridge Toll Operator and Mr. MacKenzie about the trucks.
Mr. Greenwood stated that on January 13th, and on all other occasions, he used the same car, that is a Mustang, licence no. 141 SNA to cross over into the States for purposes of the smuggling operation. Mr. MacKenzie had advised him that he could turn off the equipment at his booth so that there would be no record of his crossing back over the Whirlpool Bridge. Mr. Greenwood stated that for the first two shipments Mr. MacKenzie received $2,000. to $6,000., and Mr. Greenwood’s share was $3,000. Mr. Greenwood stated that for one shipment he insisted on an even split as he had problems with Mr. Laubisch who was rather disorganized.
Mr. Greenwood testified that he attended Mr. MacKenzie’s trial throughout the proceedings, however, he was not subpoenaed for that trial, and did not testify. He recalls encountering Mr. MacKenzie at the bathroom in the courthouse; Mr. MacKenzie asked him what he was doing there. He denied the suggestion that he told Mr. MacKenzie on that occasion that he was there to make sure Mr. MacKenzie was not “ratting on him”.
In cross-examination Mr. Greenwood was asked about his allegations that he and Mr. MacKenzie had smuggled 60 bottles of alcohol in the trunk of his Hyundai; he could not recall who the inspector was at the booth at the time, nor could he recognize his picture. He also could not recall the exact date that he and Mr. MacKenzie had met “John” and “Leo” at Tim Horton’s; his best recollection was that it was sometime between January and March, 1993. He denied that he had ever told Mr. MacKenzie that he was “going to get him”. Mr. Greenwood indicated that they did not know the identities of “John” or “Leo” or the others involved in the smuggling operation. He agreed that he had told Corporal Watters that he and Mr. MacKenzie had received $9,000., of which $3,000. was Mr. Greenwood’s share. Mr. Greenwood was also asked about the code sheet; he indicated he did not have a copy as he had thrown it away in November, 1994 when MacKenzie was suspended; he also related that Mr. MacKenzie
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Decision Page 15 had told him that if there was a problem he would punch into the pager a triple four or triple seven, which would be a signal not to cross over; this was never used. Mr. Greenwood stated that he was surprised when on January 13th Mr. MacKenzie appeared at his house in person; he told Mr. MacKenzie that some of the members of the family who lived nearby might see him and realize that something was up, as they did not associate together much.
Mr. Greenwood was also asked about his more recent activities; he indicated that he had recently obtained employment as a van driver for the Niagara Falls Casino; with Corporal Watters’ permission he had used his name as a reference on his resume. Mr. Greenwood stated that since his release from prison he was no longer involved in any illegal activities; he was questioned about some Japanese yen which was taken from the residence of a Mr. Iskander, who employed Janet Pascuzzo as a nanny; he admitted that he had taken this money from Mr. Iskander’s residence and attempted to convert it into Canadian currency at a Royal Bank branch. He had been charged with theft for this incident in August, 1996; however, Mr. Iskander had asked that the charges be dropped. He acknowledged that he had in fact stolen this money, however he characterized the incident as a “misunderstanding”.
Ms. Janet Pascuzzo also testified on behalf of the employer. She is the sister of Theresa MacKenzie and has been in a common-law relationship with Mr. Greenwood for the past three years. She acknowledged that nine years ago she was convicted of theft, and fined $100. She also acknowledged that on one or two occasions in the early 1990s she had failed to declare a few cartons of cigarettes when crossing the border; Mr. MacKenzie was not involved in these incidents. Prior to Mr. Greenwood’s conviction, she would encounter Mr. MacKenzie only at family gatherings, she had a similar relationship with her sister. Since Mr. Greenwood’s conviction, there has been no relationship between Ms. Pascuzzo and the MacKenzie family.
Ms. Pascuzzo recalled that on January 13th, at 11:00 p.m. Mr. MacKenzie showed up at their then residence on Stamford Street. She stated that she recalled the exact time as her daughter had been out that evening, and Ms. Pascuzzo was waiting for her by the window. She answered the door; Mr. MacKenzie asked for “Howie”; she remained at the door; Mr. MacKenzie told Mr. Greenwood that he had gone to get a movie and some coffee for the boys, and would be on the bridge between 12:30 and
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Decision Page 16 1:00 p.m. She recalled Mr. Greenwood asking “Why are you here?”; according to Ms. Pascuzzo, Mr. MacKenzie replied: “Why not?”.
She was aware that Mr. MacKenzie had been providing information to Mr. Greenwood through his beeper, following which Mr. Greenwood would drive over to the U.S.; she was also aware that they were involved in bringing over alcohol from the U.S. in rented trucks. Ms. Pascuzzo also said she had seen the code sheet which Mr. MacKenzie had provided. On the day following the seizure, Ms. Pascuzzo and Mr. Greenwood went over to Mr. MacKenzie’s home; MacKenzie told them that he had been questioned that night by the R.C.M.P., and that they need not worry as everything was under control and the police did not suspect either him or Greenwood.
In cross-examination Ms. Pascuzzo stated that she first became aware that Mr. MacKenzie and Mr. Greenwood were involved in smuggling when Mr. Greenwood took cartons of cigarettes to Toronto in 1993. She indicated that she did not advise the police of their activities since they were making money from it, and she did not want to get Mr. Greenwood in trouble. She also attended Mr. MacKenzie’s trial because she wanted to know what they had on them. She indicated that Mr. Greenwood was arrested because the police had followed Mr. MacKenzie to their home and as a result spotted Mr. Greenwood’s licence plates, which ultimately led to him being connected to the smuggling operation.
Ms. Pascuzzo stated that she had given a statement to Corporal Watters on January 30, 1996. She did not provide this information to the R.C.M.P. at that time. With respect to their encounter with Mr. MacKenzie at his home on January 14th, she recalled that Mr. MacKenzie had said that he had no other choice but to turn in the last truck. She recalled also that Mr. MacKenzie had said to Mr. Greenwood, “Don’t worry, they won’t know who crossed; the computer was turned off.”
Ms. Theresa MacKenzie, who testified on behalf of the grievor, had a very different recollection of the events recited by Mr. Greenwood and Ms. Pascuzzo. Ms. MacKenzie testified that she had never accompanied Mr. Greenwood to the United States. She also stated that she was at home on January 13th, 14th and 15th, 1994, and during that time her sister, Janet Pascuzzo did not visit them. She noted that when Mr. MacKenzie works the late shift until 8:00 a.m., he would sleep until 2:00 to
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Decision Page 17 3:00 p.m.; he would then do errands; it was their practice never to have anyone over on those days because things were too hectic. Her recollection was that Ms. Pascuzzo had visited over Christmas, and did not visit again until the MacKenzie’s daughter’s birthday on February 28, 1994; she stated as well that between October and January 1994, Mr. MacKenzie had worked overtime during the holiday period; she noted that they have two joint bank accounts; she does not know of any extra monies that Mr. MacKenzie had received, except for overtime payments.
In cross-examination Ms. MacKenzie stated that while she had made purchases in the United States, she always declared them; she would not wish to jeopardize her husband’s job by failing to do so. She agreed that Mr. MacKenzie did all the banking for the family; occasionally she would go to the bank to obtain funds, and would find out the balances; she also agreed that they were living solely off his pay cheque, they had a high mortgage of about $60,000. and monthly credit card payments of $1,000.; she stated that Mr. MacKenzie’s salary at the time of his termination was between $37,000.-$38,000. per year and they would have to budget carefully; occasionally, he would receive a large overtime cheque. She said she would have been aware of any illicit money obtained by Mr. MacKenzie and would have reported this to the police if they had approached her. She stated that she had no criminal record and has never been arrested.
Mr. Paul MacKenzie also had a very different version of the events in question. Mr. MacKenzie had been employed with Customs and Excise since June, 1975. Throughout his employment his disciplinary record consisted only of a one day suspension for a strike related walkout, as well as a possible reprimand for abandoning his post when he had gone to the washroom. He noted his fully satisfactory performance appraisals from 1975 to 1993, as well as three commendations, including one respecting the January 14th seizure.
Mr. MacKenzie stated that he does not recall ever going to the United States with Mr. Greenwood; he denied that he had ever had an agreement with Mr. Greenwood to bring cigarettes across the border, and he had never been in the primary lane when Mr. Greenwood had been in the company of Ms. MacKenzie. With respect to the allegations of Mr. Greenwood that they had gone to the U.S. in Mr. MacKenzie’s car to bring back 60 bottles of liquor, Mr. MacKenzie denied any
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Decision Page 18 involvement in this and stated that it would be impossible to put that many bottles in the trunk of his car. He first met Mr. Greenwood six or eight years ago through his sister-in-law, Janet; he characterized the relationship as casual, that they only socialized at family gatherings, and at a campground where they both had trailers.
With respect to the events of January 13 and 14, 1994, Mr. MacKenzie stated that he left his house at 7:25 p.m. and arrived at the bridge ten minutes later. He normally parks his car in a parking lot beside a warehouse across the street from the administration building; he would enter the warehouse, change coats, put on a work belt, a winter coat and gloves. He would then proceed to the administration building, and check the daily rotation sheet on the bulletin board next to the superintendent’s office. He noted that there are five telephones in the administration building which are available to inspectors. That day, he started to work at the counter in the administration building and could have readily used the telephones.
Mr. MacKenzie noted that it was quite common for inspectors to close a lane and split the duties on the one open lane, if there are no traffic backups; he described this arrangement as a “gentlemen’s agreement” which is not reflected on the daily schedule as it would not be approved of by management. Mr. MacKenzie testified that he always takes only one half hour for lunch although he can request a one hour break. On January 13, he believes he left at 10:50 p.m. for his lunch break; although he cannot be sure of the exact time, because he does not wear a watch, he is certain that he left before 11:00 p.m. which is the scheduled lunch break; he stated that he left early because Mr. Neufeld was on the Assistant Desk (“AD”) at 11:00 p.m. and Mr. MacKenzie was to take over that responsibility at midnight; he wanted to return to relieve him as soon as possible.
His recollection is that at 10:50 p.m. he walked across the street to his car, started his car, then went inside the warehouse, took off his coat at the locker, put on his personal coat and went back to his car; he brushed off the snow and proceeded down River Road, then onto Bridge Street to Victoria Avenue; he proceeded down Victoria Avenue passed three traffic lights to the Blockbuster Video Plaza; that evening he was asked by Ms. Lemire, the Superintendent on his shift to pick up coffee and two videos; he parked in front of the video store, proceeded to examine some of the available videos, paid for the movies and returned to his car; he then went to a
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Decision Page 19 small coffee shop down the street to pick up some coffee; he would proceed down Victoria Avenue, turn onto Valley Way and then onto Huron Street; he makes a point of going down Huron Street, where his mother resides, to see if her house lights are on. He makes a left onto Ontario Street until Queen Street then proceeds down River Road until the bridge, where he pulls into the secondary area to the left of the warehouse. He would drop off the coffee and videos at the counter; he believes he returned to the bridge at about 11:20 p.m.; his recollection is that this trip took him twenty-five minutes; he would then park the car beside the warehouse, proceed to the counter, would count the cash for Mr. Neufeld and then proceed to the secondary area. He was in the secondary area until midnight and from midnight to 12:40 a.m. he was on cash; he was on the primary line from 12:40 until 1:20 a.m. He denied that he had stopped at Mr. Greenwood’s residence that evening, and observed that he would not have had sufficient time to do so. At the request of the parties the adjudicator retraced the route and activities described by Mr. MacKenzie, with and without a stop at the Stamford Street residence.
Mr. MacKenzie stated that the inspectors prefer to work on lane one on the midnight shift as it is nearest to the administration building. When the first truck, driven by Mr. Maxwell, drove up he had a pylon in his right hand; he raised his left hand to stop the vehicle immediately behind Mr. Maxwell’s truck, and tried to put the pylon in front of lane P-1; however, that vehicle, a blue Pontiac Sedan which was being driven by Constable Phillips, insisted on proceeding through P-1 even though he waved the vehicle in the direction of P-2; he then put the pylon back and reluctantly opened up lane P-1 for this driver. He thought that the driver appeared to be irrational and perhaps drunk because he would not proceed to the other lane. Mr. MacKenzie stated that he leaned over towards the driver to determine if he was drinking; he then observed the portable R.C.M.P. radio on the right front passenger seat; he also saw that the glove compartment door was open with a hideaway mike inside. He stated that he was shocked, as he realized that this was the R.C.M.P.; he asked the driver where he lives, citizenship, etc.; the driver then drove away. Mr. MacKenzie recalled that he had asked Mr. Maxwell the usual Customs’ questions; he asked him if he was empty or loaded, to which the driver replied that he was empty; he stated that he observed no unusual behaviour on the part of the driver; he appeared to be approximately 65 years of age, and he seemed very relaxed, and did
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Decision Page 20 not appear to pose any threat. Mr. MacKenzie observed that while there is no written policy prohibiting loaded commercial vehicles from crossing at Whirlpool Bridge at midnight, it would be necessary to do paperwork if the vehicle is loaded; this is usually done by a broker, who at that time would only be at the Queenston Bridge; accordingly, trucks would only proceed through Whirlpool Bridge if they say they are empty.
Mr. MacKenzie also recalled the second truck which was driven by Mr. Zip; he recalls asking Mr. Zip where he lives, to which he replied: “Hamilton.” He asked him his citizenship, how long he had been away, to which he replied: “For the day”. He also stated that he did not buy anything while he was away. He then asked him if he was empty or loaded, Mr. Zip replied that he was empty. He did not observe any difference in the car’s configuration which would indicate that it was loaded; in his experience, the tires of a loaded truck would pillow out. He also observed that Mr. Zip appeared agitated; Mr. MacKenzie stated that he did not give Mr. Zip any warnings, that he had no discussion with Mr. Zip other than the usual Customs’ questions. Mr. Zip stated that he was empty, and therefore he did not send him to secondary. Mr. MacKenzie observed that when he saw Constable Phillips, it was clear that Mr. Phillips was watching the Maxwell truck, however, when the next truck, driven by Mr. Zip came by, he had no indication of what was happening. He stated that Superintendent Lemire would tell them if there was any particular lookouts happening on their shift and she had not indicated anything to him. He said he had checked in the computer, prior to Mr. Zip driving up to see if there was a lookout; he found nothing. He did observe a beige four door Sedan, approximately 50 to 100 feet behind the truck driven by Mr. Zip with a male driver alone in the car. He formed the opinion at the time that that vehicle was possibly another R.C.M.P. officer; he thought perhaps the R.C.M.P. had a plan and that this was a controlled delivery. He assumed that Mr. Zip would be followed by the R.C.M.P. Had it not been for his view that it was a controlled delivery, he would have referred Mr. Zip to the secondary area.
Mr. MacKenzie categorically denied that he had given Mr. Zip a warning; in particular, he observed that he does not use the expression: “the heat”. He put his hand on the pylon to close P-1 and move over to P-2; when the vehicle was five feet away, he recognized the driver of the sedan immediately behind Mr. Zip; he stated to the driver: “Hey Willy, what’s happening?”. He and Constable Hébert engaged in some Public Service Staff Relations Board
Decision Page 21 small talk; Mr. Hébert then said: “I got to go, I’m following that truck”. Mr. MacKenzie replied: “I had another budget truck, they both said they were empty”; he was again asking what was going on when Mr. Hébert said he had to go and departed. Mr. MacKenzie testified that the U-Haul truck came by about fifteen minutes later. He stated that it was not the same as the Budget truck, and there was no vehicle behind it, accordingly it did not appear to be under surveillance. He stated that the driver, Mr. Hobbins was a “biker type”, and the vehicle seemed heavily loaded. Among other things he asked the driver if he was empty or loaded, to which he replied that he was empty; he then completed the referral card and sent him to the secondary area. Mr. Dimaurizio and Mr. Sabrizzi dealt with the seizure. Accordingly, the January 14th rotation shift schedule is not accurate, according to Mr. MacKenzie; it was only at 3:00 a.m. that he was relieved by a Mr. Smith who was brought over from the Rainbow Bridge as a result of a seizure.
Mr. MacKenzie recalled giving a witness statement to the R.C.M.P. at the Superintendent’s office on the morning of January 14th. He was surprised that he was asked to give a witness statement; he had been involved in a number of seizures in the past, and on those occasions he provided a K-19A, which is referred to as a “will say”, a standard testimony review used in criminal proceedings. He thought that the witness statement was “totally unappropriate”. Mr. MacKenzie said that his statement took half an hour; he was not comfortable in the presence of the two officers including Constable Hébert, who he knew. He told them that he would give them a “will say”; however, they said they needed a witness statement; he then asked them: “Do you think I’m involved in this?”, they replied that they did not, but they had to get the paper work straightened away. Before giving his statement, he went to see Superintendent Lemire to tell her the statement was unnecessary and did not make sense; according to Mr. MacKenzie, she replied that she was unhappy also, however, there was nothing to worry about and he should just give them the statement.
Mr. MacKenzie stated that at no time that day did he meet with either Mr. Greenwood or Janet Pascuzzo. He also denied that he had ever gone to a Tim Horton’s outlet in Niagara Falls with Mr. Greenwood to meet anyone; he said he had never been introduced to anyone named “Leo”, and that none of the alleged events described by Mr. Greenwood took place.
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Decision Page 22 Mr. MacKenzie also stated that from January to November 1994 his duties were not restricted in any way by the employer; no one gave any indication that he was under any suspicion.
On November 11, 1994, when he was advised of his suspension, he went to the home of his mother-in-law, as he recalled that his wife had told him that she would be there that day.
Mr. MacKenzie was asked about an anonymous letter sent to the R.C.M.P. (Exhibit G-2). Mr. MacKenzie said he had no knowledge of this letter until he was shown it by Corporal Watters when he was arrested in January, 1995. He had never had any discussions with Mr. Greenwood about the existence of that letter. Mr. MacKenzie recalled that at his criminal trial he saw Mr. Greenwood in the washroom of the court house and asked him why he was there. Mr. MacKenzie stated that his lawyer had said that only he and his wife should attend the trial, and this direction was passed onto his family. Mr. Greenwood told him he had every right to be there and that: “I want to see if you ratted on me”. Mr. MacKenzie stated that he was dumbfounded and did not reply; he did not have any notion of what Mr. Greenwood was talking about. He was not aware of Mr. Greenwood’s involvement in any smuggling until January, 1995 when Mr. MacKenzie was re-arrested at the same time as Mr. Greenwood and they were both placed in holding cells. Mr. MacKenzie stated that he was advised by his lawyer, Mr. Conti, to remain silent and to refer all inquiries to Mr. Conti. Mr. MacKenzie observed that he considered himself to be a good employee and that he would not conspire with others to smuggle and would not bring shame upon his father’s badge (Mr. MacKenzie had testified that his father had worked as a Customs Inspector, and that he had insisted on wearing his father’s old badge when he became a Customs employee).
In cross-examination Mr. MacKenzie agreed that allowing the illegal importation of contraband is a fundamental violation of the duties of his position. He had never been advised by the R.C.M.P. that there would be a controlled delivery that day. He also agreed that the relevant manual stipulates that authorization is needed for controlled delivery and there was no such authorization in this instance. While he had suspicions about Mr. Zip, he did not refer him to secondary. He was able to observe, at the time he was dealing with Mr. Zip, that there was a car behind him that
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Decision Page 23 appeared to be an R.C.M.P. vehicle; he surmised this as it was a four door sedan which was similar to Constable Phillips’ car. He agreed that he did not verify if it was a police car before letting Mr. Zip go. He stated that he knew something was wrong given the time of night and that the car driven by Mr. Hébert appeared to be “creeping up”. He acknowledged that he had no authority to permit Mr. Zip to go given his suspicions; he observed that: “I stuck my neck out” for the first time in 19 years.
Mr. MacKenzie denied that he might have left for lunch before 10:50 p.m.; he insisted that it was always his habit to change into his own coat when going out for coffee. He acknowledged the importance of providing detailed and accurate reports; he agreed that his concerns about the truck driven by Mr. Zip was not noted in his witness statement, nor did he make mention, when he gave his statement, that he thought it was a controlled delivery. He acknowledged that he said nothing to either Corporal Watters or Constable Hébert about any controlled delivery, nor to his immediate supervisor, Ms. Lemire. According to Mr. MacKenzie, Ms. Lemire has said to him: “If I were you, I’d keep my mouth shut, everything’s fine”. Mr. MacKenzie agreed that Ms. Lemire was not asked anything about this comment in cross-examination. Mr. MacKenzie was also questioned about his notes (Exhibit E-49). He agreed that there is no reference in his notes to a controlled delivery, or his concerns about Mr. Zip.
Mr. MacKenzie insisted that Mr. Zip, Mr. Greenwood, Ms. Pascuzzo were lying about his involvement in the smuggling operation. He also stated that Constable Hébert’s testimony that Mr. MacKenzie made no comment about Mr. Zip’s truck is also a lie. He speculated that Constable Hébert had perjured himself because he had gotten into trouble over telling Ms. Lemire that Mr. MacKenzie was “dirty”. He noted that Mr. Zip had been granted immunity from criminal prosecution.
Mr. MacKenzie was also cross-examined about his financial situation in 1993; he stated that his mortgage at the time was $55,000., and that he had credit card debts of approximately $2,000.; his sole income was his salary of approximately $43,000. He also stated that his financial status remained the same from October to January, 1994, except for some bingo winnings of $1,800. which were used to pay off bills.
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Decision Page 24 Mr. MacKenzie was asked if he had made major purchases on or about December, 1993. He denied having made any such purchases at that time; he was specifically asked whether he had bought a diamond ring; he at first indicated that he could not recall such a purchase; he stated that he would recall it if he had done so; he observed that the ring his wife is wearing was purchased in 1990. Mr. MacKenzie then was asked to identify Exhibit E-51, a receipt with his name on it for a diamond ring purchased on December 15, 1993 for $2,980. in cash. He acknowledged that he had made this purchase; he agreed that there were no withdrawals from his bank accounts at that time; he said the money had been set aside from his wife’s bingo winnings.
On re-examination Mr. MacKenzie stated that he had received no training with respect to controlled deliveries; he stated that officers have discretion based on whether they believe an individual or not. He also noted that he does not wear a Customs jacket, and accordingly his winter coat would not reveal whether he was in a Customs’ uniform, except for his pants.
He observed that when he prepared a “will say" statement it is never given in the presence of the R.C.M.P., but rather he types it himself. He stated that the witness statement was given at 3:00 a.m., and that he was agitated by what he viewed was an improper procedure. Ms. Lemire had told him that all the R.C.M.P. wanted from him was where he was and what actions he took. He also stated that it is not unusual for him to receive between $1,000. to $1,200. a month in overtime pay. He was also asked about Exhibit E-51; he stated that the ring was a gift to his wife for their tenth anniversary; the money represented some savings plus his wife’s bingo winnings.
Ms. Lemire testified concerning a computer system known as the Primary Automated Lookout System (PALS). When a vehicle pulls up to an inspection lane, a sensor takes a picture of the plates which is recorded on the system and is checked against an enforcement data base; an inspector can see on a monitor inside the inspection booth if there are any previous enforcement orders in respect of that vehicle. An inspector has the capacity to alter a licence plate number recorded in the system; all inspectors have an identification number and password; the PALS would identify who was in the inspection booth when a particular vehicle passed through. She noted that inspectors are required to log off at the end of their rotation; if the
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Decision Page 25 inspector fails to log off, the next inspector could continue to process vehicles using the previous inspector’s identification number.
In cross-examination Ms. Lemire agreed that Mr. MacKenzie was considered a good Customs Officer; she is not aware of any previous disciplinary action taken against him. She stated that the fifty-six day schedule is posted on a bulletin board at the back of lockers in the administration building fifteen days in advance. She stated that the public has access to this building and it might be possible for a member of the public to see the daily rotation. She stated that there is no established order of rotation and that it is possible that the daily rotation could change if a person is ill or has an enforcement action to deal with. Roster changes often occur more than once a week. She agreed that when Mr. MacKenzie had left his shift at 8:00 a.m. on January 13th, he would not know what his rotation would be that evening, prior to the commencement of his shift later that day, unless he comes in early in the evening. She is not aware of when he arrived that day for the commencement of his 8:00 p.m. shift.
Ms. Lemire also stated that sometimes the Customs Inspectors watch videos in the administration room; she remembers that Mr. MacKenzie had gone for coffee on his lunch break; she does not recall if Mr. MacKenzie had requested a one hour lunch break on the evening of January 13th, nor does she recall whether there was any advisory that night concerning a delivery of illicit goods. Ms. Lemire also observed that it is customary to close off a lane if there is little traffic; the superintendent would authorize the shutting of a lane at the request of an inspector. She agreed that inspectors have discretion to wave through a vehicle; there have been occasions when a vehicle was permitted through and it was later discovered that the driver had been smuggling. Ms. Lemire also stated that officers can change licence numbers recorded in PALS; she is unaware if Mr. MacKenzie had made any such changes. There had been occasions when inspectors have forgotten to log out on the system. She has been told that inspectors have used the system when an inspector previously on duty had forgotten to log out.
Corporal Watters identified a number of Mr. Paul Adams' telephone records, as well as the telephone pager records of Mr. Greenwood and the records from his home telephone at Stamford Street in Niagara Falls. None of the telephone records obtained
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Decision Page 26 by the R.C.M.P. demonstrated that any calls were made to or were from Mr. MacKenzie; the records show that Mr. Adams had made a number of calls to Mr. Greenwood, and that Mr. Greenwood had called Mr. Adams on January 13, and that from October 21, 1993 to January 14, 1994 Mr. Greenwood had made many calls to Mr. Laubisch’s pager and cell phone from his Stamford Street residence. Corporal Watters also referred to computer records provided by the U.S. Customs Service which indicates that a car with a licence plate number 141 SNA, registered to Ms. Janet Pascuzzo of Stamford Street, had crossed over the Whirlpool Bridge on a number of occasions during this period, including at 11:29 p.m. on January 13, 1994. Corporal Watters referred to a document (Exhibit E-25) which compared the telephone records, the Customs Service entry records, and Mr. MacKenzie’s assignment to the primary lane at the Whirlpool Bridge. This analysis indicated that, firstly, there were a number of calls from the Stamford Street residence to Mr. Adams and Mr. Laubisch starting on October 21, 1993 and ending on January 14, 1994. Furthermore, in many cases following the flurry of calls from the Stamford Street residence to Mr. Adams and Mr. Laubisch, the Pascuzzo car would cross over the Whirlpool Bridge to the United States, one hour preceding Mr. MacKenzie entering the primary booth.
Corporal Watters acknowledged that the records do not indicate that Mr. MacKenzie ever contacted Mr. Greenwood on the occasions in question; there is also no evidence that Mr. Greenwood contacted Mr. MacKenzie. He also acknowledged that there is no evidence from any records that Mr. MacKenzie had received any money from the smugglers, other than Mr. Greenwood’s statement. Corporal Watters noted that a blue Pontiac with licence number 174 NEW was driven by himself and Constable Phillips and had not been waiting at the Whirlpool Bridge that night; he also stated that he had done some checks to determine if Mr. Zip had accessed vehicle registration information from the police contacts and discovered that he had not done so. Corporal Watters denied that the R.C.M.P. was angry when they learned that the U-Haul had been stopped at Customs. He also maintained that the smuggling operation on January 14th was not a controlled delivery as far as the R.C.M.P. was concerned. Corporal Watters was also referred to an anonymous letter (Exhibit G-2) concerning threats to Customs Officers from the Maxwell brothers. Corporal Watters stated that it was suspected that Mr. MacKenzie might have written the letter in order to concoct a defence for himself. Samples were obtained of Mr. MacKenzie’s handwriting, however, the analysis was inconclusive. When Mr. MacKenzie was Public Service Staff Relations Board
Decision Page 27 arrested he denied writing the letter; the police have not been able to ascertain the origin of the letter.
Ms. Jennifer McFadden also testified on behalf of the employer. Ms. McFadden had responsibility for preparing a number of documents comparing the work schedules of Mr. MacKenzie and other employees working at the Whirlpool Bridge as well as the Rainbow and Queenston bridges in Niagara Falls, against the dates on which the R.C.M.P. alleged that the smuggling operations took place between October 21, 1993 to January 14, 1994. During this period of time there were ten dates on which the smuggling was alleged to have occurred; Mr. MacKenzie worked all ten of these shifts out of a total of 34 shifts that he had during this period. By contrast, of the other 16 employees at the Whirlpool Bridge, only one worked more than once on the primary line during the alleged smuggling occurrences. With respect to the other bridges, the maximum match was four times in respect of a total of three employees at the Queenston Bridge, and a maximum match of four occasions in respect of only one employee at the Rainbow Bridge.
Professor Charles Laywine is a professor of mathematics at Brock University specializing in the field of Combinatorics which concerns the counting and arranging of objects according to some specified rule. Professor Laywine was asked by the employer to examine any correlation between “the sequence of calls from Martin Howard (i.e. Howard Greenwood) to Mr. Laubisch’s pager or cell phone, followed by the entry of a car with registration 141 SNA to the U.S., and ultimately followed within 60 minutes thereafter, by the entry of Paul MacKenzie into the commercial vehicle booth (P-1)” (Exhibit E-48). According to Professor Laywine’s analysis, the probability of these events occurring at random was approximately 30,000,000 to 1. Professor Laywine observed that this is “less than one-half the probability of winning the grand prize in Loto 6/49”. He concluded that “this probability is so infinitesimally small that one must reject the hypothesis that the events took place randomly with respect to Mr. MacKenzie’s duty hours in the P-1 booth”.
Argument Counsel for the employer submitted that the evidence clearly demonstrates that the grievor knowingly and intentionally facilitated the importation of alcohol on January 14, 1994. Mr. Snyder submitted that this is not a case of an inspector who Public Service Staff Relations Board
Decision Page 28 was negligent, or was operating under duress; rather, it is clear that Mr. MacKenzie exploited his position of trust for profit.
Mr. Snyder reviewed in detail the evidence presented by the employer. Counsel maintained that each of the witnesses corroborated each others’ testimony. In particular, he noted that there was extensive corroboration of the evidence of both Mr. Greenwood’s and Mr. Zip’s testimony, both of whom directly implicated the grievor. In addition, there is considerable documentary evidence that confirms their testimony, for example, the record of Mr. Greenwood’s telephone calls, the computer records of him crossing the border at the relevant times, and with respect to Mr. Zip, the bridge receipt with the licence number scrawled on the back of it.
Counsel for the employer argued that there is no basis for concluding that Mr. Greenwood had given perjured evidence; Mr. MacKenzie confirmed that he had only a casual relationship with Mr. Greenwood; the only basis for animosity between them is the fact that Mr. Greenwood had gone to prison for smuggling, and Mr. MacKenzie did not. Mr. Snyder also referred to Mr. MacKenzie’s testimony that he had encountered Mr. Greenwood in the washroom at the court house, and that Mr. Greenwood had said: “I am just making sure you are not ratting on me”. This comment does not make sense unless Mr. MacKenzie was involved with Mr. Greenwood in the smuggling operation. Counsel also suggested that there is no evidence that Mr. Zip was subject to any reward or harm as a consequence of testifying in these proceedings. Counsel also maintained that a number of aspects of Mr. MacKenzie’s testimony are simply not credible, in particular the evidence concerning the purchase of the ring in December, 1993, and his failure to make any reference in the witness statements or in his note book concerning his supposed suspicions about Mr. Zip.
Mr. Snyder also argued that while the direct evidence is strong enough to implicate the grievor, the circumstantial evidence should also be considered, in accordance with the test set out in New Dominion Stores and R.W.D.S.U., Local 414 (1992), 28 L.A.C. (4th), 53, which was cited with approval in Dominion Colour Corporation and Teamsters Chemical Energy and Allied Workers’, Local 1880 (1996), 54 L.A.C. (4th), 386 (Marcotte). Mr. Snyder emphasized while the “clear and cogent” evidence test applies, there is no sliding scale of proof, and the burden of proof
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Decision Page 29 remains the civil burden, per Bradley Air Services v. Paul Chiasson et al. (1995), 90 F.T.R. 264, at page 272.
The grievor’s representative submitted that while the burden of proof in this case is the civil standard, where there are allegations of criminality the evidence must be all the more compelling. Mr. Done argued that this case rests on whether the testimony of Mr. Greenwood, Ms. Pascuzzo and Mr. Zip is to be preferred over the testimony of Mr. MacKenzie and Theresa MacKenzie. In particular, it was Mr. Done’s submission that if Mr. Greenwood’s evidence were disregarded there is insufficient evidence against Mr. MacKenzie. Mr. Done maintained that Mr. Greenwood is not a credible witness; Mr. Done noted that he lied in these proceedings about not having committed a dishonest act since his release from jail. He suggested that Mr. Greenwood might have decided to engage in smuggling while Mr. MacKenzie was on shift, without Mr. MacKenzie’s knowledge, in the hope that Mr. MacKenzie would protect him should he run into difficulties. Mr. Done noted that there is no independent evidence of any communication between Mr. Greenwood and Mr. MacKenzie. Furthermore, there are contradictions in Mr. Greenwood’s evidence; for example, Mr. Greenwood observed that Mr. MacKenzie had provided him with a code as a precaution; yet he says Mr. MacKenzie had showed up on his door step on January 13th.
Mr. Done also maintained that Ms. Pascuzzo’s testimony is not credible. There was not enough time for Mr. MacKenzie to have gone for coffee and to the video store and return to the bridge, as well as stopping at the Greenwood residence. Furthermore, Ms. Pascuzzo’s evidence about meeting with Mr. MacKenzie at his house on January 14th is contradicted by Ms. MacKenzie. Mr. Done suggested that Ms. MacKenzie is more credible than Ms. Pascuzzo. Ms. Pascuzzo admitted to being a thief and a smuggler, and stated that she would not turn in Mr. Greenwood because of the money he was making. On the other hand, Ms. MacKenzie gave detailed reasons why Ms. Pascuzzo could not have been at their house on January 14th; Ms. MacKenzie was adamant that she would not lie under oath for Mr. MacKenzie. The grievor’s representative also submitted that Mr. Greenwood was motivated to perjure himself in order to implicate Mr. MacKenzie because Mr. MacKenzie had led the police to Mr. Greenwood; furthermore, he might have felt that Mr. MacKenzie, as an enforcement officer, had given some incriminating evidence to the police.
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Decision Page 30 Mr. Done also argued that Mr. Zip is not a credible witness; he noted that Mr. Zip was granted immunity from prosecution in return for his testimony. Mr. Zip also admitted that he was eager to engage in smuggling; Mr. Done suggested that Mr. Zip likely wrote the licence number down while driving, which would explain the shaky scrawl on Exhibit E-19; if he had written down the licence number while parked at the border and speaking to Mr. MacKenzie the handwriting would be more legible.
The grievor’s representative also submitted that the employer has taken a contradictory position; even after the employer was alerted by the R.C.M.P., in early 1994, that Mr. MacKenzie was a suspect, it continued to employ him in a position of trust, and did not restrict his duties in any way. The employer at no time launched its own investigation in determining whether Mr. MacKenzie was guilty of misconduct. Mr. Done also maintained that it is appropriate to separately evaluate the employer’s case against Mr. MacKenzie as of the date of the indefinite suspension, that is November 11, 1994, and the date of discharge of January 20, 1995. Mr. Done submitted that it is open to the adjudicator to conclude that the employer jumped the gun and acted without valid grounds in November, regardless of the merits of the employer’s case as of January 20, 1995.
Reasons for Decision The factual issue to be determined in this case can be stated quite simply: did Mr. MacKenzie participate in a scheme to smuggle illicit alcohol in the early hours of January 14, 1994 as alleged by the employer in its letter of discharge. The parties agree that had Mr. MacKenzie willingly participated in such a scheme, he would have committed a fundamental breach of his duties as a Customs Inspector.
There is no dispute that a smuggling operation did take place on January 14, 1994, involving the transportation of large quantities of liquor across the Canadian border at the Whirlpool Bridge, and that Mr. MacKenzie was on duty at the time at the Bridge when the goods were trucked over, and allowed two of the three trucks to pass through without referring them to secondary inspection. Mr. MacKenzie maintains that he allowed the first truck through because of his honest, albeit mistaken belief that it did not contain contraband, and he permitted the second truck to go through because at the time it was his judgement that this was in the interests of ensuring the success of an apparent R.C.M.P. surveillance. It is the employer’s position that
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Decision Page 31 Mr. MacKenzie was a willing participant in a conspiracy to smuggle these goods, and stood to benefit financially by allowing the trucks to enter Canada. In my view the employer’s contention is strongly supported by both direct and circumstantial evidence.
Three witnesses gave evidence which directly implicates the grievor in the smuggling operation; the most damning is the testimony of Mr. Howard Greenwood. In effect Mr. Greenwood’s evidence is that over a period of several months, Mr. MacKenzie provided Mr. Greenwood with information as to exactly when he would be posted at the primary lane at the Whirlpool Bridge, with the intention that Mr. Greenwood would pass on this information to persons who would then transport illegal shipments of liquor brought into Canada, with Mr. MacKenzie’s co-operation. Mr. Greenwood’s testimony as to Mr. MacKenzie’s involvement was detailed and unequivocal; there is no doubt that if his evidence is believable then Mr. MacKenzie had committed the misconduct for which he was terminated. While I would agree with Mr. Done that Mr. Greenwood is far from being a paragon of virtue and honesty, I find that his evidence with respect to Mr. MacKenzie’s involvement is credible. As counsel for the employer noted, no cogent explanation was given by the grievor as to why Mr. Greenwood would perjure himself in attempting to implicate Mr. MacKenzie. Indeed, the most logical explanation for Mr. Greenwood’s evidence against Mr. MacKenzie is his resentment that Mr. MacKenzie, who according to Mr. Greenwood, received the lion's share of their proceeds, did not go to jail while he, that is Mr. Greenwood, did. Furthermore, there is considerable evidence corroborating Mr. Greenwood’s testimony, including the testimony of Mr. Adams and Mr. Zip, as well as documentary evidence such as Mr. Greenwood’s telephone records and the Customs’ computer printouts. There is also the question as to what was Mr. Greenwood’s role in the smuggling operation, if it was not to act as a liaison between the smugglers and Mr. MacKenzie. Mr. Done suggests that Mr. Greenwood may have lied to the smugglers about the grievor's cooperation in order to get a share of the proceeds; however this does not explain his apparent detailed knowledge of Mr. MacKenzie's daily rotation schedule.
Mr. Zip also implicated Mr. MacKenzie by identifying him as the Customs Inspector who warned him about the police when he was crossing the border. Again, Mr. Zip’s testimony was detailed and unequivocal; at no time during his testimony did
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Decision Page 32 he appear to fudge or exonerate himself as to his participation in the illegal activities. On the whole I found Mr. Zip to be an entirely credible witness, much of whose testimony was corroborated by Mr. Adams and Mr. Wiesnewski, as well as the toll bridge receipt. In addition, there is the evidence of Ms. Janet Pascuzzo who testified that she was present when Mr. MacKenzie came to their house on the evening of January 13th to inform Mr. Greenwood as to when he would be on the primary lane that night; she also maintained that she was at Mr. MacKenzie’s residence on January 14th when he gave them assurances that they were not suspects. As well, she was familiar with the “code sheet” which Mr. MacKenzie had allegedly given to Mr. Greenwood for the purposes of secretly communicating to him about his duty rotation. Again, the grievor provided no evidence as to how Mr. Greenwood would have such detailed knowledge of his daily duty roster, which would enable him to know exactly when Mr. MacKenzie would be staffing the primary lane. Logic and common sense dictates that such knowledge could only be obtained directly from Mr. MacKenzie. I am also mindful of the evidence of the employer demonstrating that the possibility of coincidence between the activities of Mr. Greenwood, Mr. Laubisch et al. and Mr. MacKenzie being present at the primary lane on those occasions, is highly unlikely, to put it mildly.
In the face of this substantial evidence, neither Mr. MacKenzie nor his wife provided any independent evidence which would serve to corroborate their version of the events. Furthermore, I did not find Mr. MacKenzie to be a credible witness. In particular, his demeanour when being cross-examined about the purchase of a diamond ring for $3,000. cash in December, 1993, and his response to questions about this matter demonstrated a complete lack of candour and a great deal of equivocation. Furthermore, the circumstances of that purchase give rise to considerable suspicion about the grievor’s conduct. His belated explanation that this sizeable purchase for cash (which was not withdrawn from either of his two bank accounts) emanated from his wife’s bingo winnings is simply not convincing, and is inconsistent with his earlier testimony that he made no major purchases at that time, and that the $1800. of bingo winnings had been used to pay off bills.
Both representatives agreed that given the nature of the allegations against the grievor, the evidentiary test is whether there is clear and cogent evidence establishing the misconduct alleged by the employer. In my view, however one defines or
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Decision Page 33 interprets this test, the exercise is academic in the circumstances of this case; the evidence against the grievor is in fact overwhelming and leaves virtually no room for doubt as the grievor’s guilt. I do not believe that the employer can be faulted for allowing the grievor to perform the full range of his duties until his suspension on November 11, 1994; such actions can hardly be said to amount to condonation, or an expression of trust and confidence in the grievor. I also conclude that in the circumstances of this case the employer was entirely justified in indefinitely suspending Mr. MacKenzie on that date. I see no basis for compensating Mr. MacKenzie in whole or in part for lost wages between the date of his indefinite suspension and his discharge, as was suggested by the grievor’s representative.
In summary, I find that the grievor had willingly participated in a conspiracy to smuggle large quantities of alcohol into Canada, that this constituted a flagrant breach of his duties as a Customs Inspector, and accordingly his discharge was an appropriate response on the part of the employer. For these reasons, the grievances are denied.
P. Chodos, Deputy Chairperson.
OTTAWA, February 3, 1997.
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