R. v. Meer, 2011 ABQB 46

Court of Queen’s Bench of Alberta Citation: R. v. Meer, 2011 ABQB 46 Date: 20110126 Docket: 080543575Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Jonathan David Meer Accused _______________________________________________________ Reasons for Sentence of the Honourable Mr. Justice Brian R.

Burrows _______________________________________________________ [ 1 ] On December 3, 2010 I found Jonathan David Meer guilty of the following offences: 1) Count 1: Arson of the residence of R.S. at Mulhurst, Alberta on March 25, 2007, contrary to s. 434 of the Criminal Code . 2) Count 3: Arson of the residence of R.S. at Edmonton, Alberta, knowing the property was inhabited or occupied, on December 20, 2007, contrary to s. 433 (

a) of the Criminal Code . 3) Count 4: Extortion of R.S., contrary to s. 346(1.1) (

b) of the Criminal Code .

4) Count 5: Extortion of the Royal Bank of Canada, contrary to s. 346(1.1)(

b) of the Criminal Code. 5) Count 6: Obstruction of justice, contrary to s. 139(2) of the Criminal Code. 6) Count 7: Conspiracy to commit arson, contrary to s. 465(1)(

c) of the Criminal Code. 7) Count 8: Conspiracy to commit extortion, contrary to s. 465(1)(

c) of the Criminal Code. 8) Count 9: Conspiracy to commit obstruction of justice, contrary to s. 465(1)(

c) of the Criminal Code. 9) Count 10: Conspiracy to assault R.S., contrary to s. 465(1)(

c) of the Criminal Code. My reasons for finding Mr. Meer guilty of these offences will be found at 2010 ABQB 768. Kienapple Principle [2] I am first required to determine if and how the rule in R. v. Kienapple (SCC), [1975] 1 S.C.R. 729 applies to thesefindings of guilt. The rule is used to prevent multiple convictions for the same wrong.

Where the same transaction or conduct on thepart of the accused gives rise to more than one offence, the rule requires that he be convicted of only the more serious offence, or at least,the offence for which the Crown seeks to have a conviction recorded. [3] In this case the Crown concedes that the conduct in which Mr. Meer engaged which constituted extortion of R.S. (Count 4) andextortion of the Royal Bank of Canada (Count 5) was the same conduct which constituted the offence of obstruction of justice (Count 6). The Crown also concedes that the conduct in which Mr.

Meer engaged which constituted conspiracy to commit extortion (Count 8) wasthe same conduct which constituted the offence of conspiracy to commit obstruction of justice (Count 9). The Crown concedes,therefore, that convictions should not be entered in respect of Counts 6 and 9. Rather, those counts should be conditionally stayed. [4] Mr. Meer submits as well that the remaining conspiracy counts, that is Count 7, conspiracy to commit arson, Count 8, conspiracyto commit extortion, and Count 10, conspiracy to assault R.S., relate to the same conduct on the part of Mr.

Meer and that a convictionshould be entered in respect of only one of them. [5] I reject that submission. While it may be accurate that Mr. Meer had a general overall plan to intimidate R.S. and the Royal Bankwith each of whom he was involved in protracted disputes, in my view the evidence established that the execution of that plan haddistinct chapters involving separate plots and conspiratorial agreements, though they may have involved the same conspirators. Theconspiracy to set fire to the R.S.

Mulhurst property was distinct from the conspiracy to shoot the windows of the Bank representativesand R.S.’s lawyer, which was separate from the conspiracy to assault R.S.. The Kienapple rule does not therefore apply. The threeremaining counts of conspiracy are separate and distinct transactions. There will be convictions recorded in respect of each of them. [6] I therefore direct the Clerk:

a) in respect of Count 1 to record a conviction not for the offence charged in the Count but for the lesser and included offence ofarson created by s. 434 of the Criminal Code;

b) to record convictions in respect of Counts 3, 4, 5, 7, 8, and 10 of the Indictment;

c) to record conditional stays in respect of Counts 6 and 9 of the Indictment;

d) to record acquittals in respect of Counts 2, 11, 12, and 13 of the Indictment. Counts 14 and 15 were withdrawn by the Crown. Sentencing [ 7 ] The circumstances of the offences are described at length in the reasons I issued on December 3, 2010. Very generally Mr. Meer was involved in civil litigation commenced by R.S.. He was also engaged in civil litigation commenced by the Royal Bank of Canada. In order to induce R.S. and the Royal Bank to terminate the litigation or aspects of it on terms favourable to him, Mr.

Meer subjected R.S., the lawyer acting for him, an officer of the bank, and the official assigned to conduct a receivership of a corporation in which Mr. Meer was interested, to severe intimidation. R.S.’s summer home at Mulhurst, Alberta was deliberately burned to the ground. Threatening and otherwise intimidating phone calls were made to R.S.’s residence. The windows at R.S.’s lawyer’s residence, the residence of a bank officer, and the residence of the receiver were damaged by marbles shot out of a paintball gun. An attempt was made to lure R.S. out of his home to beat him up.

R.S. ’s Edmonton home was set on fire at night when R.S., his wife and his sister were in their beds. The house was completely destroyed. R.S. suffered serious burns and required hospitalization for many days. [ 8 ] These violent acts were carried out at Mr. Meer’s direction by Mr. Meer’s son, Christopher Meer, and Dustin Pisesky, a friend of Christopher Meer and the Meer family. In the case of the attempt to assault R.S. and the arson of his Edmonton residence, Christopher Meer and Dustin Pisesky recruited two other young men, Nicholas Radloff and Jesse McKay, to assist them.

Though he did not personally engage in any of the violent acts, Mr. Meer was the master mind of the plots and conspiracies pursuant to which they were committed. [ 9 ] Mr. Meer is now 48 years old. He has been married to Loreena Meer for 27 years. He has three adult children: the son previously mentioned and two daughters. His wife and daughters continue to be loyal to him and to support him. His son has absconded and is a fugitive from the law. [ 10 ] Mr. Meer was engaged in business for many years and was very successful. He was able to provide his family with a very luxurious lifestyle.

The crimes of which he has been convicted appear to have been committed when his wealth and lifestyle were placed in jeopardy by business failures. [ 11 ] He has no criminal record. [ 12 ] He has been in remand custody since April 27, 2008, that is for 2¾ years. [ 13 ] The Crown submits that a total sentence of 15 years is fit. The Crown also accepts that Mr. Meer should be given double credit against that 15 years for the time he has spent in remand custody. That is 5½ years. [ 14 ] Mr. Juneja, counsel for Mr. Meer, submits that 5½ years is sufficient punishment; that Mr.

Meer should be sentenced to time served. [ 15 ] The Court of Appeal has not established a starting point for any of the offences for which convictions have been entered. For several of the offences (Counts 3, 4, 5, 7, and 8) the maximum punishment set out in the Criminal Code is life imprisonment. [ 16 ] Mr. Meer’s crimes are obviously very serious. The community has been understandably shocked by them. Mr. Meer’s intention was to cause the victims of his crimes to be afraid to pursue their rights against him. In that he was successful.

He caused R.S. to enter settlements unjustly prejudicial to his interests on two occasions. They were later set aside. The Royal Bank withdrew some of the collection procedures it was pursuing against him.

[ 17 ] The criminal means Mr. Meer chose to accomplish his purpose caused extreme personal hardship for the immediate victims of his crimes. He caused R.S. and his wife E.S. great fear. They were made to worry about their personal safety and the safety of their children and grandchildren. Mr. Meer’s threats and actions caused them great emotional trauma. They lost two beautiful homes. They lost all of their treasures - especially the treasures which, though they had small monetary value, were priceless from a sentimental point of view. Their pet dog was killed.

R.S. suffered serious burns requiring a significant stay in hospital. They were subjected to great psychological stress. In short, for about a year, they were terrorized by Mr. Meer. [ 18 ] Mr. Meer’s crimes had very considerable direct consequences for people who were not his direct targets. The summer cottage next to the R.S. Mulhurst residence was also destroyed by the fire set at the R.S. residence. The houses next to the R.S. Edmonton residence were damaged. Firefighters in both Mulhurst and Edmonton were exposed to danger.

The security of members of the families of R.S., his lawyer, the Royal Bank’s officer, and the Bank’s receiver was threatened. I readily infer that all of these family members experienced some level of psychological stress as a result. [ 19 ] All crimes are serious both for their impact on the individuals who are their direct victims and for their impact on society generally. Violent crimes both harm their victims and imperil the peace and security of the community. But in my view Mr. Meer’s crimes threatened this community in a way that is of a greater order of seriousness than usual. This is because Mr.

Meer’s crimes were a direct and deliberate affront to the rule of law. He rejected the processes which have developed in our community for the just resolution of civil disputes. He chose to employ terrorism instead. [ 20 ] The rule of law is fundamental to the prosperity, security and survival of our civilization. Examples of civilizations where the rule of law is not respected abound in the modern world. Perhaps the most valuable feature of our Canadian society is that we are not one of those civilizations. Conduct of the nature in which Mr. Meer engaged may be common in many parts of the world.

It simply cannot be tolerated here. Mr. Meer’s punishment must clearly denounce his intolerable conduct and communicate to anyone who might be inclined to follow his example that the consequences of doing so will be very severe for them. [ 21 ] Mr. Meer’s personal moral blameworthiness in relation to these serious crimes is very great. There is little about Mr. Meer’s conduct to distinguish the level of his moral culpability from that of a person convicted of first degree murder. That R.S. was not killed in one or other of the fires has nothing to do with Mr. Meer.

It is exclusively the result of R.S.’s own sensible reactions when he discovered the fires and to his good fortune. [ 22 ] Mr. Juneja invites me to conclude that Mr. Meer is less morally blameworthy than Mr. Pisesky who has admitted to setting the first R.S. fire, to being present at the shooting of the windows, to making some of the threatening phone calls, to executing, albeit unsuccessfully, the plan to assault R.S., and to participating in the setting of the second R.S. fire. [ 23 ] Similarly Mr. Juneja submits that, at least in respect of the plot to assault R.S. and the second R.S. fire, Mr.

Meer is less morally blameworthy than Mr. Radloff who was present at both of those events. [ 24 ] Mr. Pisesky and Mr. Radloff have been previously sentenced for their roles in these crimes. Mr. Pisesky plead guilty to two counts of arson and to one count of extortion. He was sentenced following a joint submission to 4 years incarceration against which he was given 17 months credit for the 8.5 months he had served in remand custody. His remaining sentence was 31 months. Mr. Radloff plead guilty to one count of arson and was sentenced following a joint submissions to 2 years incarceration. Mr.

Juneja argues that there should be parity between Mr. Meer’s sentence and those imposed upon Mr. Pisesky and Mr. Radloff. [ 25 ] There were obvious mitigating factors which significantly reduced the sentences imposed on Mr. Pisesky and Mr. Radloff which are not present in Mr. Meer’s case. Both of those accused cooperated with authorities. Both plead guilty. Both agreed to testify truthfully in subsequent proceedings including this trial. Both expressed genuine remorse. [ 26 ] Though Mr.

Meer was not the fire setter, the paintball gun shooter, or the telephone threatener, his contribution was essential to each of those crimes. The primary motivation for the crimes was to serve a goal that was Mr. Meer’s alone – to cause parties with civil claims against him to abandon them. The actual fire setter, paintball gun shooter, and telephone threatener did those things at his behest, out of loyalty to him and primarily to please him. Jonathan David Meer was the general. Christopher Meer, Dustin Pisesky, Nicholas Radloff, and Jesse McKay were mere foot soldiers. They were morally blameworthy.

But in the crimes of which Mr. Meer has been convicted as a party, their moral blameworthiness is very significantly less than Mr. Meer’s.

[27] As to the conspiracies Mr. Meer has been convicted as one who actually committed those offences as opposed to one who aidedor abetted the commission of the offence. Indeed he was the primary conspirator. He recruited his son and Mr. Pisesky to theconspiracies. They in turn recruited Mr. Radloff and Mr. McKay to the conspiracies in which they were involved. Again the primarypurpose for the conspiracies was the achievement of Mr. Meer’s goals. His blameworthiness in the context of the conspiracies is of asignificantly greater order of magnitude than that of Mr. Pisesky and Mr. Radloff. Indeed Mr.

Pisesky and Mr. Radloff were notconvicted of conspiracy. [28] For these reasons I reject the submission that Mr. Meer’s punishment should be similar to the punishments imposed on Mr.Pisesky and Mr. Radloff. In my view the principle set out in s. 718.2(

b) of the Criminal Code, that a sentence should be similar tosentences imposed on similar offenders for similar offences committed in similar circumstances, has little application here. Mr. Meer onthe one hand and Mr. Pisesky and Mr. Radloff on the other are not “similar offenders”. [29] For this reason as well, the issue addressed in R. v. Reader (2008) 2008 MBCA 42 , 225 Man. R. (2d) 118 (Man. C.A.),which was cited by Mr.

Juneja - that is the issue of how a sentencing judge deals with the fact that the offender with whose punishmentparity is sought was sentenced pursuant to a joint submission - does not require consideration here. [30] Mr. Holtby observed that under s. 718.2(a)(iv) of the Criminal Code it is an aggravating factor that an offence was committed forthe benefit of, at the direction or in association with a criminal organization. “Criminal Organization” is defined in s. 467.1(1) of theCriminal Code. The group consisting of Jonathan David Meer, Christopher Meer and Mr. Pisesky clearly comes within that definition.

I agree with Mr. Holtby’s submission that this aggravating factor is present. However, the extent of its aggravating effect in this case is,in my view, limited at least in relation to the conspiracy counts, by the fact that the reason for the principle somewhat overlaps the reasonfor the crime. [31] Mr. Juneja submitted that it is a mitigating factor that Mr. Meer has no prior criminal record. I also accept that submission. [32] Mr. Juneja also urged that given that these are Mr. Meer’s first offences, his rehabilitation should be given priority in determining a sentence. He relied on R v.

Priest (1996) (ON CA), 110 C.C.C. (3rd) 289; 1 C.R. (5th) 275 (Ont. C.A.) whereRosenberg J. A. said at para. 17: The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences andoffences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspendedsentence and probation or a very short term of imprisonment followed by a term of probation. (emphasis added) Clearly, this case is within the exception that I have emphasized in that passage. Mr.

Meer’s crimes are very serious and involvedviolence. [33] In his submissions Mr. Holtby referred me to several sentencing cases involving either arson or extortion. The cases were: - R. v. Malley (1994) (NB KB), 150 N.B.R. (2d) 342 (N.B.Q.B.): The accused counselled a young offender tocommit arson (the offence created by s. 434) by burning a boat in an agricultural building. The young offender accompanied by twoothers broke into the building and set fire to the boat. The entire building and its contents, worth over $3 million, was destroyed.

Thesentence was 6 years before credit for time in remand custody. - R. v. Green (1997) 1997 ABCA 219 , 200 A.R. 307 (Alta. C.A.): In a domestic dispute the accused set fire to the homeof his partner’s parents. He was convicted of arson though it is not clear whether it was the offence created by s. 434 or the offencecreated by s. 433(a). The report does not indicate the extent of the damage. The sentence was 5 years. No credit was given for 6months pretrial custody. - R. v. Quigley 1998 B.C.J. No. 561 (B.C.C.A.): The accused was convicted of arson under s. 433(a).

He had been asked to leave aplace he was renting and in retaliation he set fire to it. There were a number of other tenants living there. His sentence was 5 years inaddition to 12 months pretrial custody.

- R. v. Lokhmachev (2001) 2001 NFCA 68 , 161 C.C.C. (3d) 451 (Nfld. C.A.): The accused was convicted of 2 counts ofarson (two houses destroyed in the same fire) and one count of obstruction of justice. The obstruction related to interfering with awitness. He was sentenced at trial to 5 years on the first count, 3 years concurrent on the second count, and 2 years consecutive on theobstruction of justice. The Newfoundland Court of Appeal upheld the sentence and quoted the trial judge’s comments on the seriousnessof the crimes in its decision.

The trial judge said: The reason that the sentencing is so high in arson is that it is not sufficient [for the accused] to say, “I did not think I would cause damageto anybody else”. . . . Arson has always been looked upon as one offence that has to be deterred through personal and general deterrence. It is a danger to thecommunity and the public, in terms of life and health. . . . The obstruction of justice charge, I find in this case, is on a very serious level.

It was evident throughout the trial that intimidation andobstruction of justice was of paramount concern to the accused and the results of the obstruction came across very vividly in thedemeanour of the witnesses who had been intimidated. These people exhibited something that I cannot put in writing; something that Icannot adequately put in an oral judgment. You have to be there to see it. These people were scared to death and they exhibited thatthroughout the trial. - R. v. Coates

(2002) O.J. No. 5871 (O.S.C.J.): Three accused were convicted of conspiracy to commit extortion and extortion. Over a six-week period, they attempted to extort $70,000 from the victim. They actually obtained $5000 from him. There was no actualviolence. They relied on an association they had with the Hell’s Angels to intimidate their victim. Their scheme was described asunsophisticated. The three accused were sentenced to 5 years, 4 years and 3 years respectively. The differences were based on theirrespective records and degree of involvement.

The sentence was found fit by the Ontario Court of Appeal [(2003) (ON CA), 169 O.A.C. 305]. - R. v. Lock (2006) (ON CA), 213 O.A.C. 398: The accused telephoned a defence lawyer who had refused toact for him and demanded $1000 failing which he stated he would have someone kill him and hurt his family. He had two previousconvictions for extortion of lawyers. The trial judge imposed a sentence of 6 years. The Ontario Court of Appeal reduced it to 4 years. It observed that the circumstances involved one event only. [34] Mr.

Holtby submitted that the totality principle - the principle that the cumulation of sentences for multiple offences should not beallowed to produce a total sentence which is unduly long or harsh - will not be violated if the sentences for the conspiracy to commitarson and the conspiracy to commit extortion are ordered to run concurrently with the sentences for the arson convictions and theextortion convictions. The totality principle will also be served, Mr. Holtby submits, by giving Mr. Meer 2 for 1 credit for his pretrialcustody. [35] In his submissions Mr.

Holtby also reviewed how the sentence he proposed would reflect each of the objectives of sentencing setout in s. 718 of the Criminal Code. I agree with his analysis in that regard. [36] I accept Mr. Holtby’s submissions. I agree that a fit sentence is 15 years. I do not agree that the time Mr. Meer has served wouldbe anywhere close to sufficient punishment for his crimes. [37] Mr. Holtby submitted that the individual sentences for the various convictions should be as follows: 1. Count 1 - s. 434 arson 5 years 2. Count 3 - s. 433(

a) arson 7 years consecutive to Count 1 3. Count 7 - conspiracy to commit arson 3.5 years concurrent with Count 3

4. Count 4 - extortion of R.S. 18 months, consecutive to Counts 1 and 3 5. Count 5 - extortion of the Royal Bank 12 months consecutive to Counts 1, 3 and 4 6. Count 8 - conspiracy to commit extortion 9 months concurrent with Count 4 7. Count 10 - conspiracy to assault R.S. 6 months consecutive to Counts 1, 3, 4, and 5 [ 38 ] In my view Mr. Holtby’s analysis as to whether the sentences imposed for these 7 convictions should be consecutive to or concurrent with each other is correct. The two arsons are clearly distinct and unrelated crimes. Similarly the two extortions are distinct and unrelated crimes. [ 39 ] Mr.

Juneja argued that the sentence for conspiracy to assault R.S. should be concurrent with the sentence for extortion. But as previously observed, the extortion relates to the threatening calls and the damage to the windows of R.S.’s lawyer’s residence. I view them as distinct from the conspiracy to assault R.S.. If they were all considered to be included in the extortion, the appropriate total sentence for that criminal activity would be 2 years. It therefore makes no practical difference which way they are parsed. [ 40 ] Mr. Meer I sentence you to a total sentence of 15 years.

The allocation of that time to the various convictions is to be in the manner previously stated. Mr. Meer is to have credit for 5½ years against the 15 years for the 2¾ years he has spent in remand custody. [ 41 ] As the extortion offences, Counts 4 and 5, involved violence against persons, s. 109(1)(

a) applies and there will therefore be a firearms prohibition under s. 109(2). [ 42 ] Count 4, 5 and 8 are also primary designated offences under s. 487.04. There will therefore be a DNA order under s. 487.051 of the Criminal Code . Sentencing Submissions heard on the 6 th day of January 2011. Dated at the City of Edmonton, Alberta this 26 th day of January 2011. Brian R. Burrows J.C.Q.B.A. Appearances: B. J. Holtby, Q.C. for the Crown A. Juneja

for the Accused