R. v. Fischer, 2022 ONSC 3794

CITAITON: R. v. Fischer, 2022 ONSC 3794

COURT FILE NO.: CR 169-18

DATE: 20220624

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R.

AND

Allan Fischer, Defendant

BEFORE: Justice Spencer Nicholson

COUNSEL: Adam S.J. Campbell, for the Crown

Allan Fischer, self-represented

HEARD: March 21-April 1, 2022

REASONS FOR TRIAL VERDICT

NICHOLSON J.:

[1] Allan Fischer is accused of defrauding Canada Post Corporation (“Canada Post”) between April 17, 2013 and August 24, 2016 contrary to s. 380(1) (a) of the Criminal Code. As a corollary, he is also charged with possession of property knowing that it was obtained by the commission of an indictable offence pursuant to section 354(1)(a).

[2] At trial, the Crown called four Canada Post employees and ten members of law enforcement. Additionally, the Crown called evidence from two witnesses that briefly worked for Mr. Fischer, three witnesses that ran “business centres” and three witnesses that purchased stamps from Mr. Fischer. The Crown also called two witnesses with ties to a charitable organization called “Women Working Together”.

[3] While I do not intend to recite the evidence of these witnesses at length, the importance of each group of witnesses will be set out below. None of the witnesses’ credibility was undermined in any way.

[4] The Crown also adduced 21 Exhibits into evidence. Many had sub-exhibits and sub-sub-exhibits.

[5] Mr. Fischer, as was his right, did not call any evidence at trial.

Evidence at Trial:

The Canada Post’s Credit Analysts:

[6] The Court heard from two credit account analysts, whose responsibility was to monitor accounts to ensure Canada Post received payment for the credit it extended.

[7] Canada Post, through its sales department, offers several products, including stamps, pre-paid envelopes and labels and mailings, such as flyers, letter mail, personalized mail and invoicing. Canada Post customers are able to obtain such services on credit. These were typically small businesses. Up to a certain, limited amount, which amount has fluctuated between $7,500 and $2,500 over the years, customers are able to obtain credit without the need for any credit checks. The amount has been reduced over the relevant time period due to the risk of fraud. Most of the new accounts would be set up by phone. The sales representative would take the customer’s information and then fax them an agreement activation form to sign and return. Often, the customer would take a picture of the signed form and email it back to Canada Post. In approximately 2016 this was converted to an online application process.

[8] The two analysts noted a pattern emerge with several accounts, leading to an investigation. All of these accounts were new. They would be billed to the maximum credit limit. The accounts would be set up for the purpose of buying “admail” and often with a “rush status” but the customer would purchase coils of stamps on credit instead. The stamps would be delivered to various UPS stores in or around southwestern Ontario. The accounts would never be paid. The analysts testified that no other accounts would simply order stamps, which they described as a unique identifier. They believed that these accounts were all being set up by one individual, who they gave the moniker “the Stamp Guy”.

[9] To order stamps on credit, a customer would provide a company or business name, its projected sales, contact information and a contact person’s name. Canada Post would also permit the product to be delivered to a different address than the business address. The companies in question would provide head offices with addresses throughout Canada, but the stamps were always shipped to UPS, or similar stores, located in southwestern Ontario.

[10] When the analysts would attempt to contact the customers about the unpaid accounts, they could never reach the customer at the phone numbers provided. Google searches of the customer’s name would come up empty. The businesses/companies did not exist or the addresses on the accounts would not match the business name.

[11] Thus, these analysts began to actively look for this pattern among their accounts. They also referred the matter to Canada Post’s security and investigation team, in this case Ms. Gayle Gray. Canada Post identified approximately 50-60 accounts that fell within this pattern. The analysts testified that similar accounts had been noticed going back many years.

Postal Inspector—Gayle Gray:

[12] Ms. Gray testified. She impressed as diligent and professional. She was a postal inspector from 2002 until July 2021 when she retired. Her job was to investigate criminal matters involving Canada Post. I am left in no doubt that she was good at her job.

[13] The matter was referred to her from the credit analysts in May of 2016. They gave her between 20 and 30 accounts to investigate. She did so.

[14] She noticed that there was one particular address that the stamps were being delivered to in London. It was called the “Executive Centre” where a person could rent an office and receive mail. She contacted the Executive Centre and spoke to Earlene Jansen on July 6, 2016. On July 14, 2016, Nicole Spriet, who owned the Executive Centre, provided Ms. Gray with Allan Fischer’s name and contact information as a person who rented a P.O. Box at the Executive Centre.

[15] Earlene Jansen, the receptionist at the Executive Centre, contacted Ms. Gray to advise her that a package had arrived for Mr. Fischer’s P.O. Box. Ms. Jansen took the license plate number of the vehicle in which the person arrived to pick up the package. The license plate belonged to a black Kia Soul.

[16] Ms. Gray contacted the RCMP. She also asked Ms. Jansen to advise her if there were any more shipments expected for Mr. Fischer.

[17] Ms. Gray also spoke to Mary Woodfield, who was the office manager of Nexus Business Centre in Cambridge. She learned that Allan Fischer had rented a P.O. Box there as well.

[18] Ms. Gray provided the RCMP with nine audio recordings of a sales representative speaking to a person whom Ms. Gray believed was their suspect. She provided the RCMP with account statements in relation to the accounts. She also provided the RCMP with Canada Post invoices, agreements and emails relating to these accounts.

[19] Ms. Gray also prepared a Canada Post Excel Report dated August 8, 2016. This was a spreadsheet compiling the accounts that she felt were related to “the Stamp Guy”. It included the account number, the I.P. address from where the order originated, the Customer name, the amount of the order, the order date, the physical address of the customer and the “ship-to” address. The “ship-to” address is the address to which the stamps were ultimately sent.

[20] This document, Exhibit 2(d)(i), showed $172,237.82 having gone unpaid across approximately 50 separate orders. The orders were made between August 13, 2014 and August 3, 2016. The amounts of the orders varied but ranged from approximately $2200 to $7,200. Most notably, the physical addresses provided for these customers were from throughout Canada. This included Ontario, Manitoba, Saskatchewan, Alberta, British Columbia and Nova Scotia. However, the “ship-to” addresses were in places like Woodstock, Tillsonburg, St. Thomas, Chatham, Waterloo and London.

[21] The last eleven orders, all for different customers with addresses found throughout Canada, were shipped to the Executive Centre in London from May 4, 2016 to August 3, 2016.

[22] I listened to the audio recordings between various customers and Canada Posts sales department. These were the subject of a mid-trial ruling for which I issued an endorsement. I ruled that the audio recordings were admissible into evidence. I had indicated that I was concerned about those recordings being used for the purpose of “voice recognition” citing a number of cases that raise that concern. The voices of the customer(s) do bear considerable similarity with each other.

[23] Canada Post was also able to obtain the passwords and security questions used for the accounts in question. There were some notable similarities with respect to some of the security questions. For example, one of the security questions was “Make of first car?”. Several of the accounts used “Datsun”. “First girl/boyfriend” was frequently answered “Connie”. “Favourite Concert seen?” is frequently answered “Blue Rodeo”. “ThinkandGrowRich” is often the answer to “Favourite Book?”.

[24] Furthermore, although there are many different phone numbers provided for the customers, sometimes the same phone numbers would be used for companies that otherwise would have no apparent connection. For example, the same number was used for “DomLegal”, “SelectData” and “BartonLab”, despite those companies purportedly having their physical offices in Regina, Barrie and Winnipeg respectively.

[25] Ms. Gray arranged to be notified if any stamp deliveries were going to be mailed to the Executive Centre. She was advised of such a delivery and had photographs taken of the parcel prior to it being shipped out. She advised the RCMP of the delivery.

Mary Woodfield:

[26] Ms. Woodfield has operated the Nexus Business Centre (“Nexus”) in Cambridge since April 4, 2016. Nexus offers mail services and virtual offices. For $40 per month, customers can have their mail delivered to Nexus.

[27] Ms. Woodfield knows Allan Fischer. She spoke to him by phone on August 22, 2016 and met him once at Nexus when he paid his invoice, but only for a few minutes. He paid her for part of August and the month of September and she gave him a package that had just come in. He paid her in cash.

[28] Mr. Fischer only wanted the mailbox service.

[29] Ms. Woodfield could not remember what he looked like and could not positively identify Mr. Fischer during the Zoom trial.

[30] Ms. Woodfield produced an email dated Wednesday, August 24, 2016 addressed to her from “allan@canleadgen.ca”. The email refers to a company name of “2Trom-CanLeadGen”, with an address in Cambridge. The contacts were Allan Fischer and Bill Rotley. A contact phone number was provided and the email is from “Allan”.

[31] I note that Bill Rotley is the name that was on the agreement activation form for 2Trom and also the name provided on the 2Trom telephone call by the customer.

[32] Ms. Woodfield sent invoices via emails addressed to CanLeadGen to 245 Maitland Street, Unit 5, Attention: Allan Fischer.

Nicole Spriet and Earlene Jansen:

[33] Ms. Spriet is the owner and operator of the Executive Centre at 151 York St. in London. Ms. Jansen is her employee.

[34] The Executive Centre offers full-service office space, virtual offices and a mailing service. For a monthly fee, a person can have mail sent to the Executive Centre and retrieve it during set hours. The person is required to check in with the receptionist, Ms. Jansen, when they pick up their mail.

[35] Ms. Spriet provided the RCMP with a copy of a month-to-month written agreement entered into with Allan Fischer dated April 14, 2016, which was made a trial exhibit. The agreement is between the Executive Centre and 1848426 Ontario Ltd. Allan Fischer purportedly signed the agreement on behalf of the numbered company.

[36] Ms. Spriet also had a Business Card in her file from TCI Workplace. Allan Fischer was identified as the Project Manager. It had an address of 353 Talbot Street, in St. Thomas.

[37] Ms. Jansen was stationed at the entrance to the Executive Centre. She testified that she knew all of the renters of office space and the mail service. She identified Mr. Fischer during the trial, via Zoom, as someone she had met and knew as Allan Fischer. He had come into inquire about renting a mailbox sometime in 2015 or 2016.

[38] She gave information to someone she believed was an RCMP officer on one occasion. She could not remember speaking with a postal inspector.

[39] Ms. Jansen testified that if a package arrived for Mr. Fischer, he would arrive soon after she called to tell him about it. She probably had met him 10 to 12 times. He was always alone when he came in.

Purchasers:

[40] The Court heard from William Merkley, Louay El-Kadri and Vinod Patel. All three testified to having purchased stamps from Allan Fischer.

[41] Mr. Merkley was operating a business called “London Coin”. He met Mr. Fischer approximately 10 years ago and identified him during the trial, via Zoom. He testified that Mr. Fischer came into his store looking to sell “P” stamps, or “permanent” stamps. Mr. Merkley bought a box of stamps from him. He thought 500 or 1000 stamps. He did so about a dozen times. He also bought express post envelops from Mr. Fischer.

[42] Mr. Merkley paid by cheque payable to “TCI Fulfillment”.

[43] Mr. Merkley last purchased stamps from Mr. Fischer in approximately 2014 or 2015. He identified three invoices that he had received from Fischer for stamps. Two were dated February 10, 2015, and the other January 14, 2015. These invoices reflected the purchase of coils of stamps for $1400 + HST, $3000 + HST and $2600 + HST. In total, Mr. Merkley estimated that he had paid approximately $20,000 to Mr. Fischer over the years for stamps and pre-paid envelops.

[44] Mr. Merkley would pay these invoices in advance. He testified that he did not always receive the stamps from Mr. Fischer that he had paid for. Mr. Fischer still owes him money, which Mr. Merkley sought to recover for over one year, to no avail.

[45] Mr. Merkley testified that the amount he paid for the stamps was discounted from what he would pay if he obtained the stamps directly from Canada Post.

[46] Mr. El-Kadri testified that he bought stamps from Mr. Fischer in 2016. Mr. El-Kadri owned a small business and was looking for stamps through Kijiji to save money since they would be discounted.

[47] Mr. El-Kadri testified that he only met Mr. Fischer on one occasion. They met outside a Tim Hortons in London, and he bought two or three coils of stamps, each coil having 100 stamps. He paid $70-$80 per coil, which was about a $30 savings per coil. Mr. El-Kadri was unable to positively identify Mr. Fischer at trial.

[48] Mr. El-Kadri produced an email dated July 18, 2016 from himself (“Lou”) to allan@a5data.com The subject line was “Re: Reply to your “Postage Stamps” Ad on Kijiji”.

[49] Mr. Patel’s main profession was being a stamp dealer. He would buy and sell stamps from collectors and auction houses. He would then re-sell them to other collectors and on eBay.

[50] Mr. Patel recalls Mr. Fischer. In 2016, he probably had two transactions with him, through an ad on Kijiji. Mr. Patel responded to the ad. They met at a Tim Hortons in Toronto. He purchased 50 coils of “P” stamps for $2,500. He identified Mr. Fischer at trial, via Zoom, as being the man that he met.

[51] They had already agreed on a price when they met. Mr. Fischer gave him an invoice and Mr. Patel paid in cash. Mr. Patel paid 60% of the face value of the stamps each time.

[52] Mr. Patel provided an email to the RCMP dated July 21, 2016 from “Allan Fischer allan@a5data.com”. He also produced an invoice from TCI Fulfillment Services Inc. dated July 21, 2016 for 49 coils of P Stamps for $2499.00 plus HST. He was given this invoice by Mr. Fischer.

The Employees:

[53] The Crown called two witnesses who each said that they worked for Mr. Fischer for a brief period of time.

[54] Grace Wismer worked for Mr. Fischer in June of 2016. He responded to an ad she had put on Kijiji. He interviewed her at a Tim Hortons in London and offered her a job. She understood that her job was to call people and “generate leads”. Mr. Fischer’s company was called “Canadian Lead Generator”. She would call businesses and confirm their information for an ad campaign.

[55] She worked for Mr. Fischer at an office with a sign out front that said “Teleticom”. The address she gave was 240 Horton Street, although she was not entirely sure. The office had a lobby with three desks in it. She worked at one of those desks. Mr. Fischer had an office in the back.

[56] Ms. Wismer was employed there for approximately 6 weeks. She was laid off in July for a couple of weeks and then stopped working for Mr. Fischer in August. She never met any other employees. There may have been other employees working from home, but she never met them. No clients or customers ever attended the office while she was there. She was not acting as a receptionist. Mr. Fischer answered his own phone. She would phone out to companies, but she would not provide a number to those companies to contact her. She would call the company, verify information that Mr. Fischer already had provided to her on a USB stick.

[57] Ms. Wismer was paid by email transfer. She was not given a paystub or a Record of Employment. However, she did have deductions taken off her pay. She never received a T4.

[58] The Crown introduced through Ms. Wismer several photographs she had taken of the office where she worked. This included a Teleticom sign in the window, the front office where she worked, and her desk and computer. She also had photographs of the emails she sent to Mr. Fischer asking for her T4. Those were sent to allan@teleticom.com.

[59] Ms. Wismer had no role in setting up Canada Post accounts and did not see any Canada Post products or large volume of stamps.

[60] Ms. Wismer identified Mr. Fischer during the trial.

[61] Cheri MacKay used to work at a UPS store in St. Thomas. She knew Mr. Fischer from when he was a customer there. He came in three or four times to pick up a package. This was sometime between 2012 and 2014. The UPS Store was located at 3-41 Mondamin Street. I note that address appears as a “ship-to address” on Ms. Gray’s spreadsheet twice.

[62] Mr. Fischer mentioned to Ms. MacKay that he “might need a graphics designer” and she gave him her email address. They set up an interview at Tim Hortons and she accepted a job offer.

[63] Ms. MacKay was unable to give the office address but identified that it was at the intersection of Hamilton Road and Maitland Road in London. There was a sign that said “Teleticom”. She thinks she started working there in August of 2015. She was there for three or four months and was paid by E-transfer. She usually worked two to three days per week, 8 hours per day.

[64] She worked in an office space that had a desk for her and another desk. His office was around the corner. There were no other employees. She never saw any customers attend. Mr. Fischer had his own phone.

[65] Although she worked there for 3 or 4 months, he only paid her for two weeks or maybe one month. She eventually just stopped coming because he was not paying her.

[66] Ms. MacKay testified that she believed that his business involved web-design and marketing. She was working on logos, but not relating to Teleticom.

Women Together Mentoring Program Witnesses:

[67] Barbara Mullins and Tammie Ross were called as witnesses by the Crown. Neither one knows Mr. Fischer or has ever met him.

[68] Women Together was a charitable not for profit organization started by Tammie Ross in 2010 or 2011. She was the director of the company. Ms. Mullins was the administrator of the company (through her maiden name). The business would coach women who needed assistance.

[69] The corporate profile of Women Together was introduced into evidence. Its Ontario corporate registration number is 1848426. This is the same corporate number that Mr. Fischer used to contract for the mailbox service with Executive Centre.

[70] Both Ms. Mullins and Ms. Ross testified that they had never contracted for a mailbox at the Executive Centre. They had no knowledge of the contract between their company (ostensibly) and the Executive Centre dated April 14, 2016.

The Police Witnesses:

[71] As noted, ten police officers testified. This included members of the RCMP, OPP and London Police Services. Some of the police witnesses had an ongoing active role in the investigation, while others were simply part of the team that executed the search warrant described below on Mr. Fischer’s premises. Mr. Fischer did not attack their credibility in any meaningful fashion.

[72] The initial RCMP officer contacted by Postal Inspector Gayle Gray was PC Kelly McMullen. She was given information by Ms. Gray about a black Kia Soul, Allan Fischer and TCI Workplace. She performed a motor vehicle search and found the vehicle was registered to 1841585 Ontario Ltd., with an address of Unit 6-245 Maitland Street, in London. She also did a business query and determined that 1841585 Ontario Ltd. had an office address as 6-245 Maitland Street and its administrator was Allan Fischer.

[73] Corporal Jennifer George has been a member of the RCMP for 19 years. She became involved in this investigation on August 4, 2016. She eventually took over running the investigation from PC McMullen. She too was able to identify Mr. Fischer at trial from meeting him when the search warrant was executed, and from conducting surveillance on him.

[74] PC McMullen was advised by Postal Inspector Gray that a package was being sent to the Executive Centre for Mr. Fischer on August 9, 2016 and the police arranged surveillance. PC McMullen attended at the Executive Centre and met Ms. Jansen and Ms. Spriet and was given some documentation and a tour of the mailbox area.

[75] Seven officers were involved in the surveillance. Their goal was to make observations of the person that picked up the package and then follow him or her. PC McMullen was sitting in the waiting area of the Executive Centre where the receptionist’s desk was located. The remainder of the team waited outside and signalled the arrival of the black Kia Soul to PC McMullen.

[76] Shortly afterwards, a male entered the Executive Centre and inquired about the rental box from the receptionist. He walked down the hall and retrieved the Canada Post package and exited with it. At trial, PC McMullen identified Mr. Fischer, via Zoom, as the person who retrieved the package. Photographs were taken of Mr. Fischer walking with the package and entering his vehicle. Mr. Fischer was followed in his Kia Soul. He made a brief stop at another address in London and then was followed to 245 Maitland Street. I find that it was Mr. Fischer who retrieved the package.

[77] Corporal George obtained several production orders and eventually a search warrant on Units 1 and 5 of 245 Maitland Street, as well as the Kia Soul. The production orders included information from Rogers about the IP addresses she was provided by Canada Post. More surveillance was conducted, linking Mr. Fischer with 245 Maitland Street.

[78] At 6:09 am, on October 19, 2016, the police executed the search warrant on Units 1 and 5 of Maitland Street and the black Kia Soul. Unit #1 was the main office where Ms. Wismer had worked. Unit #5 was a basement apartment, which the officers described looked like it was mainly for storage. Mr. Fischer’s computers were seized. Various documents were seized, including many from Canada Post. External hard drives and memory sticks were seized.

[79] Corporal George later received the results of the IP production order. Six of the businesses listed on Postal Inspector Gray’s spreadsheet had used the same IP address to buy stamps. The IP address was associated with 245 Maitland Street.

The Computer Evidence:

[80] Sergeant Nathan Eichenberg has been a member of the RCMP for 16 years. He is part of the Integrated Technological Crime Unit, which has just changed its name to “Digital Forensics Services”. His task was to analyze the computers. He was also present at 245 Maitland during the execution of the search warrant.

[81] He prepared an “Electronic Device Summary” which describes the devices, where they were seized from, the password needed to access them and a summary of the items found on each device.

[82] On a laptop seized from Unit 5-245 Maitland, there were five Canada Post Agreements relating to five of the businesses on Postal Inspector Gray’s spreadsheet. There were also phone bills for Mr. Fischer.

[83] On a different laptop, seized from the same area, there were Canada Post Agreements relating to two more of the businesses on Postal Inspector Gray’s spreadsheet. There were mailbox rental documents for Nexus and the Executive Centre. There were emails from GoDaddy for domain names. There were emails confirming the use of certain phone lines. There were emails found for the Kijiji ads offering stamps for sale.

[84] On a USB stick, found in the same unit, there were Canada Post Agreements relating to nineteen of the businesses listed on Postal Inspector Gray’s spreadsheet.

[85] On various thumb drives, more Canada Post Agreements were found in relation to twenty-four of those businesses.

[86] Finally, on a desktop computer found in unit #1, four more Canada Post Agreements, a letter from Canada Post, further mailbox rental documents, phone bills, emails from Canada Post relating to the business accounts, emails relating to Kijiji Stamp Sales using allan@a5data.ca, emails relating to phone numbers used for the business accounts and an email from GoDaddy were discovered.

[87] The “GoDaddy emails” require some explanation. They were sent from GoDaddy and addressed to allan@teleticom.com or allan@a5data.com. They advise him to renew the domain names in fifteen days or risk cancellation. Among the domain names that needed to be renewed were, for example, Smartyellow.ca, autovideocreator.ca, facebookpowerhouse.ca and linkedinforbusiness.ca. Smartyellow and Autovideocreator are two of the businesses that appear on Postal Inspector Gray’s spreadsheet. Smartyellow had a physical address on its order form in Abbotsford, BC. Autovideocreator had a physical address noted to be in Sydney, Nova Scotia.

[88] The Canada Post emails found on these devices are not addressed to Mr. Fischer. For example, there is an email sent by one of the analysts that testified dated May 26, 2016 addressed to stan.martin@asgrow.ca inquiring about an unpaid account. That is the email address provided on the Canada Post Agreement for Asgrow Inc., one of the businesses listed on Postal Inspector Gray’s spreadsheet. There are many emails to and/or from Canada Post on these devices that were sent to the email addresses used to set up these accounts with Canada Post.

[89] There are also emails from allan@teleticom.com to “Magicjack” asking Magicjack to deactivate phone numbers that he had set up. Similarly, there are emails to allan@teleticom.com from Vitelity advising that calls to phone numbers associated with many of the businesses in question have failed. Vitelity and Magicjack are companies that set up internet phone numbers.

[90] There were also logos found on these devices for several of the companies noted on Postal Inspector Gray’s spreadsheet, such as Morris Auto Appraisers, VR London Inc. and SalesWinners.

[91] The search also resulted in the discovery of a Word document that included a list of business website addresses and contact names, many of which were used to purchase Canada Post Products. In other words, a partial roster of those customers identified by the analysts as involved in this scheme.

Sergeant Cindy Ward:

[92] The final witness for the Crown was Sergeant Ward. She has been with the RCMP since March of 1997. At the time of this investigation, she was with the Financial Crimes Unit in London, Ontario. She took over as lead investigator from Corporal George in October 2016. She was present when the search warrants were executed and acted as the “exhibit officer” as evidence was seized.

[93] Sergeant Ward testified that the RCMP was able to identify 48 business accounts opened with Canada Post going back to 2013 through August 2016 which they identified as fraudulent. The total value of the credit provided by Canada Post to these entities was $234,763.31.

[94] She authored a document entitled the “Crown Report”. In a mi-trial ruling dated March 29, 2022, I held that this report was admissible into evidence pursuant to R. v. Scheel, 1978 CanLII 2414 (ON CA), [1978] O.J. No. 888, (Ont.C.A.). In that case it was held that summaries of evidence taken from sources such as trial exhibits and testimony at trial could be received into evidence. The usefulness of the summary depended upon whether the trier of fact accepted that the facts upon which the summary was based were proven.

[95] The Crown Report compiled in one location all of the evidence pertaining to each one of the forty-eight businesses suspected to be fictional entities created for the purpose of defrauding Canada Post. Sergeant Ward testified at great length as to how she connected each business with both Canada Post and Allan Fischer. The Crown Report identifies the specific evidence upon which the RCMP relied upon to conclude that Mr. Fischer was involved.

[96] For example, the first business identified in the Crown Report is Leeson Recruitment. The Crown Report identifies that a Canada Post business account was set up on April 17, 2013, under the name Leeson Recruitment, with a physical address of 302-19 Thorne St., Cambridge. The contact name provided by the customer was “John Leeson” and an email address and telephone number were also provided. As evidence of those facts is a Canada Post Agreement Activation Form dated April 17, 2013.

[97] The report notes that 302-19 Thorne Street in Cambridge is the address of Nexus Business Centre. They connected Mr. Fischer to that location in August of 2016 when he rented a mailbox.

[98] A corporate and business name search was done of Leeson Recruitment and there were no businesses using that name.

[99] The Crown Report sets out the products which were purchased on credit using this account and references the Canada Post Invoice showing those purchases.

[100] The Crown Report then sets out that when the search warrant was executed on Mr. Fischer’s premises and computers, the following were found:

(a) A signed copy of the Canada Post Agreement Activation form for Leeson Recruitment;

(b) A letter from Service Ontario addressed to 1887086, c/o Robert John Leeson, 302-19 Thorne Street, Cambridge;

(c) A handwritten note detailing the exact information provided in the Canada Post Agreement Activation Form

(d) An email from allan@teleticom.ca to MagicJack Customer Support dated October 21, 2015 confirming the deactivation of 5 phone numbers, one of which is the number on the Leeson Recruitment Agreement Activation Form.

[101] The Crown Report repeats this analysis in respect of all 48 businesses. The physical addresses of these businesses are located throughout Canada. Allan Fischer is never identified on the Agreement Activation Forms, a different name is always provided. The physical addresses provided exist but never match the name of the company. The business names are never found in corporate or business searches and internet queries never yield results for the business name.

[102] In all cases, Canada Post products, usually stamps, were ordered and not paid for. Those products were all shipped to addresses belonging to UPS or similar services in southwestern Ontario.

[103] In all 48 cases, there was at least some evidence found at 245 Maitland Street in relation to the business in question, thereby linking them to Allan Fischer. These included signed copies of the Canada Post Agreements, emails sent to the business contact’s email address, handwritten notes pertaining to the business and emails from GoDaddy to allan@teleticom.ca or allan@5data.com in relation to those businesses.

[104] For several of the businesses, the IP address used to order the Canada Post products was registered to 245 Maitland St., Unit #1, London. There were also emails from Vitelity to allan@teleticom.com in relation to phone numbers in relation to some of these 48 businesses.

[105] Finally, the Crown Report notes that the surveillance demonstrated that Allan Fischer was observed attending at Executive Centre to retrieve the package sent to Iname Technologies Inc., one of the 48 businesses. Photographs from the surveillance show Mr. Fischer carrying the package in question, exiting his black Kia Soul at the 245 Maitland Street address.

Legal Tests:

[106] The Supreme Court of Canada in R. v. Riesberry, 2015 SCC 65, described that fraud consists of dishonest conduct that results in at least a risk of deprivation to the victim.

[107] S. 380 (1) (a) of the Code provides as follows:

380 (1) Everyone who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,

(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars;…

[108] The elements of the offence of fraud under s. 380 (1) of the Code were set out by the Supreme Court of Canada in R. v. Theroux, [1993] 2 S.C.R. 5, 1993 CanLII 134 (SCC) by McLachlin J. (as she then was). The actus reus of the offence of fraud will be established by proof of:

1. the prohibited act, be it an act of deceit, a falsehood or some other fraudulent means; and

2. deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim’s pecuniary interests at risk.

The mens rea of fraud is established by proof of:

1. subjective knowledge of the prohibited act; and

2. subjective knowledge that the prohibited act could have as a consequence the deprivation of another.

[109] Deceit is an untrue statement made by a person who knows that it is untrue, or has reason to believe that it is untrue, but makes it despite that risk, to induce another person to act on it, as if it were true, to that other person’s detriment.

[110] A falsehood is a deliberate lie.

[111] The term “other fraudulent means” refers to any conduct which a reasonable person would view as dishonest: R. v. Zlatic, [1993] 2 S.C.R. 39 at p. 45 and R. v. Olan, 1978 CanLII 9 (SCC), [1978] 2 S.C.R. 1175. In Zlatic and in Theroux, the Supreme Court of Canada noted that courts have defined the sort of conduct which may fall under the third category of “other fraudulent means” to include the use of corporate funds for personal purposes, non-disclosure of important facts, exploiting the weakness of another, unauthorized diversion of funds and unauthorized arrogation of funds or property.

[112] The mens rea of fraud requires proof that the accused intentionally and knowingly engaged in the conduct amounting to deceit, falsehood or other fraudulent means and did so with the subjective knowledge that the conduct could result in deprivation of the victim’s pecuniary interests (R. v. Theroux, p.20).

[113] For the Crown to establish Mr. Fischer’s guilt, I must be satisfied beyond a reasonable doubt of each of the essential elements of the offence. There is no onus upon Mr. Fischer to prove anything. While proof beyond a reasonable doubt is not the equivalent of an absolute certainty, it is closer to that standard than it is to proof on a balance of probabilities.

[114] In terms of circumstantial evidence, it is important to note that the standard of proof beyond a reasonable doubt applies only to the final evaluation of innocence or guilt. It does not apply piecemeal to individual items of evidence (see: R. v. Wu, 2017 ONCA 620, at para. 15). The evidence must be viewed in its totality and not in isolation. Furthermore, when assessing circumstantial evidence, the court should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. However, the Crown is not required to negate every possible theory which might be consistent with the innocence of the accused (see: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37).

[115] Thus, in order for Mr. Fischer to be convicted of fraud under s. 380 (1) of the Code, the Crown must have proven each of these essential elements beyond a reasonable doubt:

(a) That Mr. Fischer deprived Canada Post of something of value;

(b) That Mr. Fischer’s deceit, falsehood or other fraudulent means caused the deprivation;

(c) That Mr. Fischer intended to defraud Canada Post; and

(d) That the value of the property exceeded $5,000.

Application of the Law to this Case:

[116] In my view, if the Crown has proven beyond a reasonable doubt that Mr. Fischer was the mastermind behind a scheme involving fictional customers purchasing stamps or other postal service products on credit, failing to pay for those products and then re-selling those products for personal gain, there can be no doubt that he is guilty of the fraud charge laid against him.

[117] I accept that Canada Post will have customers that are unable to pay the amount that they owe. Canada Post has obviously built that risk into their credit program. Clearly, Canada Post will have more than these 48 customers that are unable to pay the amount owing. Thus, absent some connection between those customers, it is conceivable that the 48 customers identified in this investigation simply represent those that do not pay the amount they owe for whatever reason.

[118] However, if a person obtains credit from Canada Post using businesses that do not actually exist, in my view the deceit and dishonesty requirement of fraud is met. The corporate and business searches conducted by the RCMP demonstrated that none of the 48 businesses and companies identified as part of the alleged scheme existed. The RCMP investigation established that none of those 48 businesses and companies had offices or stores at the addresses provided on the applications.

[119] I say “none” recognizing that for some of the 48 businesses, some information was found in the searches but did not match with the other information provided by the Canada Post customer, and that for some businesses, searches were not conducted. In my view, the Crown need not prove that each of these 48 businesses was part of the scheme to prove its case beyond a reasonable doubt.

[120] I find as a fact that none of the 48 customers identified actually existed but instead were fictional enterprises created for the purpose of obtaining postal services on credit from Canada Post.

[121] I am further satisfied that the Crown has satisfactorily proved sufficient links between all of these businesses or corporations to conclude that the same person was behind them. I recognize that a large percentage of the evidence to do so is circumstantial evidence.

[122] First of all, the pattern of businesses with their head offices located throughout Canada but having the product shipped to southwestern Ontario UPS or similar stores is distinct. It cannot be coincidental that customers with offices purportedly located in Vancouver, Halifax, Calgary and Abbotsford all chose to ship their purchased products to the same UPS store in Chatham or that unrelated customers from Kamloops, Richmond Hill, Winnipeg, Guelph, Sudbury, Prince George, Toronto, Vancouver and Portage La Prairie would all ship to the Executive Centre in London within a three-month period.

[123] There were considerable similarities in the security code answers, although I consider this to be more corroborative than conclusive.

[124] I turn to the audio recordings of the telephone calls of customers speaking to Canada Post representatives. I have determined that it is not fair to Mr. Fischer to conclude that it is his voice on any or all of the calls on the basis of voice recognition. First of all, Mr. Fischer did not testify and could not be compelled to testify but was required to address the court in order to represent himself. In my view, given that he exercised his constitutional right not to testify, it would be improper to attempt to conclude that his voice matches any of the customers’ voices on the audio recordings simply because I acquired some familiarity with his voice when he addressed me during the proceedings.

[125] Secondly, as noted in cases such as R. v. Williams, 1995 CanLII 695 (ON CA), [1995] 23 O.R. (3d) 122 (ONCA), R. v. Dodd, 2015 ONCA 286 (ONCA) and R. v. Pinch, 2011 ONSC 5484, voice recognition evidence is “fraught with danger” and should be treated with extreme caution.

[126] Thus, I am not prepared to conclude based on voice recognition alone that Mr. Fischer is the customer on any of these phone calls.

[127] However, as noted earlier, as the trier of fact I did note similarity in the voices on the calls. While I recognize that it is not wise to place too much weight on this evidence, it is noteworthy that seven of the eight customers on behalf of which the caller(s) were contacting Canada Post had their products shipped to the Executive Centre where Fischer was identified in person. The eighth, 2Trom, had its product shipped to Nexus where Fischer was identified as the contact person and is linked by specific documentation. Through the searches of Mr. Fischer’s computers, he was connected to Northern Print, Semple, Bradley Resources, Blader, Iname and 2Trom.

[128] Accordingly, although I do not place significant weight on the audio recording evidence, that evidence is corroborative of the Crown’s case against Mr. Fischer. In the absence of the audio recording evidence, it is my view that the case would still be proven beyond a reasonable doubt.

[129] The final nail in the coffin in this case is the evidence found on Mr. Fischer’s computers. That evidence unequivocally links Mr. Fischer to each of the 48 businesses, although the strength of the proven connections varies somewhat.

[130] The most telling evidence found on the computers are the Canada Post Agreements to Activate, many signed, between Canada Post and the fictitious businesses. There were copies of the Agreements to Activate on Mr. Fischer’s devices relating to 34 of these businesses. As noted, these businesses purportedly had their addresses spread throughout the country. I have found that they did not exist. The presence of these agreements on Mr. Fischer’s devices proves his involvement in the scheme.

[131] Secondly, the RCMP discovered emails to or from Canada Post on Mr. Fischer’s devices that were directed to or from email addresses allegedly belonging to many of these businesses. These were not forwarded to Mr. Fischer’s email address from the businesses but sent directly to those addresses but received by Mr. Fischer on his devices. For example, there was an email to stuart@tcimedia.ca, the email address provided to Canada Post for the supposed customer TCI Media Corp on one of the seized devices.

[132] The emails found on Mr. Fischer’s devices from, for example, Vitelity Support to Mr. Fischer’s emails (allan@teleticom.com) relating to phone numbers that were provided by the supposed customers on their Agreements to Activate also unequivocally connect Mr. Fischer to a number of these businesses.

[133] Finally, on this point, the IP address used to electronically order Canada Post products for six of the supposed customers’ transactions were all traced to 245 Maitland Street.

[134] Accordingly, the Crown has adduced both direct and circumstantial evidence of Mr. Fischer’s involvement with all of these customers, although the strength of the evidence in relation to any one of the 48 customers varies.

Mr. Fischer’s Defence:

[135] I will discuss Mr. Fischer’s apparent defence. I say “apparent” because it was difficult to discern from his argument. Essentially, Mr. Fischer argues that he was engaged in a legitimate business.

[136] The Crown adduced evidence that would tend to show that there was no legitimate business occurring at 245 Maitland Street. I do not believe that I need to make that determination, although the Crown’s argument is well taken. It is possible that there was a legitimate business occurring at the premises but Mr. Fischer was still conducting this fraudulent scheme.

[137] Mr. Fischer argued that if he was trying to mask his identity he would not put a sign on the front of his premises. He also argued that the photographic evidence showed that Ms. Wismer was actually using her desk to conduct business. He pointed out that services such as Vitelity exist to assist legitimate businesses and therefore, enlisting Vitelity is not a “shady” practice or mean that Teleticom was a “sham”.

[138] Similarly, he argued that the very purpose of UPS stores is to allow businesses to pick up their mail off-site and that there is nothing inherently wrong about that. Furthermore, he argued that a reasonable explanation for having product shipped to places like Chatham would be that a freelancer or customer lives in the area and it would be convenient for them to pick it up there. He argued that a freelance would be exactly the type of customer that would use such UPS services. Other than the one day of surveillance, he argued that the RCMP did not sufficiently verify who was picking up the parcels at the other addresses.

[139] Mr. Fischer also argued that if one central business was doing the mailing for all of these businesses, it makes sense that they would use similar password information when the Canada Post accounts were set up.

[140] In other words, I believe that the thrust of Mr. Fischer’s defence is that his company was legitimately connected with these businesses and conducting legitimate business on their behalf.

[141] I reject these assertions. I have found that the businesses involved did not exist but were created by Mr. Fischer. He may have spent his “work time” developing the personas for these entities. He may have even enlisted Ms. Wismer and Ms. MacKay to unknowingly provide some of the background used for these personas.

[142] It does not make any reasonable sense that a company located in Abbotsford, B.C. or Calgary, Alta, would be more convenienced by having its product shipped to Chatham.

[143] Furthermore, I agree with the submissions of the Crown that if Mr. Fischer was conducting legitimate business with these 48 entities there would be emails between Mr. Fischer (or his business) and these entities found on his devices. There was no indication on any of Mr. Fischer’s devices of any such communication. There are no emails from these alleged customers forwarding the Canada Post Agreements to Teleticom.com. There were no invoices for services provided by Teleticom to any of these entities.

[144] As described in Villaroman, in cases involving mostly circumstantial evidence, if there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. A reasonable doubt can still arise even if there is a lack of evidence to support it. However, the inferences must be reasonable given the evidence as a whole.

[145] In this case, the “other plausible theory” put forth by Mr. Fischer is not tenable on the whole of the evidence.

Conclusions Regarding The Elements of the Offence:

[146] The totality of the above evidence, in my view, leaves no reasonable doubt that Mr. Fischer was connected to each of the 48 businesses identified by the investigators to be part of this scheme. I find as a fact that Mr. Fischer created these fictitious businesses, including personas as their principals, email addresses and contact phone numbers for the express purpose of obtaining Canada Post products on credit. I further find that he never intended to pay for these products.

[147] Having reached that conclusion, there is no question that the actus reus of fraud has been proven beyond a reasonable doubt. The dishonest act is the elaborate creation of these fictitious entities. This constitutes “other fraudulent means” as described in the statute and caselaw. As described in R. v. Olan, supra, this conduct can “properly be stigmatized as dishonest”. The fabrication of these customers would also, in my opinion, constitute “deceit”.

[148] Furthermore, there can be no dispute that Mr. Fischer’s actions brought not only a risk of deprivation of something of value to Canada Post, but an actual deprivation to Canada Post. Canada Post sent stamps and other products to Mr. Fischer for which it was never paid. I accept the figure of $234,763.31 as the amount that Canada Post was deprived, as set out in Exhibit 21.

[149] It is not necessary to prove in a case involving fraud that Mr. Fischer financially benefitted from the victim’s deprivation. The elements are made out simply by the deprivation to Canada Post. However, the Crown has adduced evidence from three witnesses that purchased stamps from Mr. Fischer, at a substantial discount. I accept their evidence. I conclude that Mr. Fischer did, in fact benefit, by re-selling the product and pocketing the proceeds.

[150] As noted in Theroux, mens rea requires proving that Mr. Fischer knowingly and intentionally engaged in the fraudulent conduct and knew that it would cause deprivation to Canada Post. The Crown need not show precisely what thought was in Mr. Fischer’s mind at the time of the criminal act. Subjective awareness of the consequences can be inferred from the act itself, barring some explanation casting doubt on such inference.

[151] The Crown has proven the mens rea of the offence beyond a reasonable doubt, in my view. Mr. Fischer’s scheme was so elaborate as to admit of no other conclusion than his actions were intentional and for the purpose of obtaining Canada Post products without paying for it. He obviously expended considerable time to create these fictitious businesses. He must have researched actual business addresses throughout Canada. He obtained fictitious email addresses and phone numbers for these businesses that were actually operational. Shipping the products to UPS stores throughout southwestern Ontario was to avoid detection. He even set up his account with the Executive Centre using a corporate number that did not belong to him. Even the audio recordings contain detailed back stories in relation to those customers. His actions were clearly intentional and designed to deceive.

[152] I have already found that Canada Post was deprived of more than $5,000.

[153] The Crown has proven each of the elements required under s. 380(1) (a) of the Criminal Code beyond a reasonable doubt. I find Allan Fischer guilty of defrauding Canada Post Corporation.

[154] I note that the indictment included only one fraud count as opposed to 48. I am satisfied that the Crown was entitled to proceed in this fashion. All of these transactions are sufficiently connected, in my view, such that Mr. Fischer’s conduct equates to a single transaction. Each instance of ordering Canada Post products shared strong similarity in the nature of the conduct involved, a large and sophisticated scheme to obtain product on credit without paying for it, repeated 48 times. The victim of the fraud, Canada Post, was always the same entity. I agree with the Crown that the analyses in R. v. Kenegarajah, 2018 ONCA 121, at paras. 30-35 and R. v. Schoer, 2019 ONCA 105 at paras. 62 and 63, apply and the indictment does not violate s. 581(1) of the Code.

[155] In any event, it is hard to understand what prejudice Mr. Fischer might have suffered by the Crown proceeding with a single count.

[156] The second count of the indictment is proven if Mr. Fischer was in possession of Canada Post mailing products (i.e., stamps) of a value exceeding $5,000, knowing that the property was obtained by, in this case, fraud.

[157] I have already convicted Mr. Fischer of having obtained the stamps by fraud. Thus, the only issue on this count of the indictment is whether the Crown has proven that he possessed said product at the relevant time(s). The Crown has proven beyond a reasonable doubt that Mr. Fischer was shipped stamps at various times, through various UPS stores. Certainly, many of those shipments exceeded $5,000 of value during the time frame set out in the indictment. He must have had in excess of $5,000 worth of stamps in his possession at certain periods of time between May 9, 2013 and August 24, 2016 procured through fraud. Collectively, there is no doubt that Mr. Fischer possessed far in excess of $5,000 of stamps over the period in question.

[158] Accordingly, I find Allan Fischer guilty on count 2 of the indictment as well.

[159] I have found that Mr. Fischer was the mastermind of a sophisticated and elaborate fraud on the Canada Post Corporation. To disguise his scheme, Mr. Fischer went to considerable lengths to create background information to substantiate the existence of fake businesses. The analysts at the Canada Post, the postal inspector and law enforcement conducted a thorough investigation to uncover this scheme. As sophisticated as the scheme was, Mr. Fischer was caught and has now been convicted.

“Justice S. Nicholson”

Justice Spencer Nicholson

Date: June 24, 2022