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[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] 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.