R v Weitzel, 2023 MBPC 19

CITATION : R v Weitzel , 2023 MBPC 19 THE PROVINCIAL COURT OF MANITOBA Steinbach, Manitoba BETWEEN His Majesty the King ) L. Nair ) for the Crown – and – ) ) Kazar Weitzel ) K. Knudsen ) for the Accused ) ) Delivered: ) April 20, 2023 ALLEN, P.J. [ 1 ] Kazar Weitzel is before the court having plead guilty to the offence of arson with disregard to human life from May 31, 2020. He was 20 years old at the time of the offence and is 23 now.

The facts of the incident are set out in the Prosecutors Information Sheet which formed part of Exhibit 1. [ 2 ] The facts as stated in that document read as follows: [ 3 ] On May 31, 2020 at 3:47 a.m. Steinbach RCMP were dispatched to a structure fire at 49 Flower Place in Blumenort, Manitoba. The home owners, Moses and Christine Adebayo were sleeping in the house at the time of the fire. The Adebayos were able to get out of the home safely. The RM of Hanover Fire Department was on scene when Constable Arpin and Constable Lavoie arrived. The Fire Chief advised members a fire bomb had been used on the front door.

When members approached the front door, burning marks could be seen going up the side of the house and door frame. The smell of gasoline was noted when members were examining the damage. A footprint was observed on the door, where it appears the suspect kicked the door in trying to force it open. [ 4 ] Members cleared the residence and noticed a broken window in the bedroom. A piece of glass was observed on the floor. The glass was seized by Constable Lavoie and placed in an exhibit bag. [ 5 ] RCMP members obtained video surveillance of a dark coloured Jeep SUV with a tire on the back.

The Jeep is observed driving westbound, down Flower Place, Blumenort, Manitoba with no headlights on. Five minutes later the Jeep is observed driving eastbound. [ 6 ] RCMP members attend Bethesda Regional Health Centre later that day to see if anyone had attended the hospital for treatment of a cut on their arm or hand. They were advised a male attended with cuts to the hand or arm that would have required stitches, between the hours of 3:30 a.m. and 1:30 p.m. that day.

A production order was obtained for the medical records of the male who required stitches, and for the video surveillance of the time the male attended the hospital as well as for the time the male re-attended to the hospital for stitches. Kazar Weitzel was identified in the medical records and video surveillance.

The video surveillance revealed Weitzel arriving at Bethesda Hospital in a dark coloured Jeep with a spare tire on the back. [ 7 ] Upon viewing video surveillance from Flower Place, Blumenort, Manitoba and the video surveillance from Bethesda Hospital, the vehicle appears to be the same vehicle. [ 8 ] The same vehicle was located at the residence of Weitzel. The plate on the vehicle was queried with Manitoba Vehicle Branch and the vehicle came back registered to Weitzel.

The vehicle information was a black 2008 Jeep Wrangler Rubicon. [ 9 ] A Pre-Sentence Report (PSR) was prepared in this matter. [ 10 ] The report reveals that Mr. Weitzel was placed in a foster home at the age of two weeks. He has subsequently remained in the Giesbrecht home until the present. His foster parents became his legal guardians when Mr. Weitzel was 16 years old. [ 11 ] The subject has no real relationships with his biological parents and has never met his biological mother. The issue of not being raised by his birth parents has bothered this young man throughout his life.

This feeling of abandonment has been heightened by the fact that he has an older biological sister who was raised by his biological father. [ 12 ] Martha Giesbrecht, Mr. Weitzel’s foster mother, said the following in the PSR about her son’s background (at page 3): With respect to his initially being placed in CFS care, Ms. Giesbrecht advised the subject’s biological mother used alcohol and other drugs and was unable to care for the subject. Ms. Giesbrecht explained the subject was born addicted and went through withdrawal symptoms as an infant.

She added they did take the subject for assessments and he was diagnosed, at the time, with Fetal Alcohol Syndrome (FAS). She advised the subject has struggled with these symptoms all his life. Ms. Giesbrecht advised the subject was not prescribed medications to mitigate these, however the family worked with the subject and modified his environment.

[ 13 ] According to Ms. Giesbrecht, her son had been a happy child until for some reason he was taken from them at age 13 and for two weeks was placed in a group home. About this episode Ms. Giesbrecht said (at page 5): When he was moved to this centre, Ms. Giesbrecht advised the subject was told by CFS that he is just a number and does not belong in their family. She conveyed this “destroyed” the subject as when he returned, he felt as though he was nobody, just a foster kid, and did not belong in their family. She advised his mood and behaviour deteriorated after his experience. Ms.

Giesbrecht assured they loved the subject all throughout this time, despite what he felt. [ 14 ] The PSR indicates that Mr. Weitzel is employed as a crew lead on an exterior siding installation company. He was described by his employer as a “great employee” (at page 8). [ 15 ] Mr. Weitzel left high school prior to completing the 11th grade. He said that he was achieving grades in the 60s and 70s but he “did not like learning in a school environment” (at page 9). [ 16 ] Both Mr. Weitzel and his mother confirmed that he drinks alcohol on the weekends.

Although he admitted that he sometimes drinks too much, in his opinion this was not a problem. His mother refused to say how much he drinks but did acknowledge that it is an issue. She believes that her son uses alcohol “as a means to cope with depression” (at page 12). [ 17 ] Further information from the PSR illustrates that Mr. Weitzel has a relatively large group of friends who he socializes with on a regular basis. [ 18 ] Ms. Giesbrecht stated that her son has suffered from depression since he was 13 years old. Taylor Lawless, who is a close friend of Mr.

Weitzel and has known him since childhood, said to the PSR reporter that he “has always struggled with his mental health” (at page 16). [ 19 ] A criminal record was filed in this matter. Mr. Weitzel has entries from youth court including a break and enter with intent, and an adult conviction for driving impaired from 2018. [ 20 ] The Crown’s position on sentencing is that Mr. Weitzel should receive an 18-month period of incarceration followed by two years of supervised probation.

The defence seeks a two-year conditional sentence order followed by two years of probation. [ 21 ] In terms of aggravating factors, the Crown suggests that this crime required a certain level of planning. Additionally, that the intent was to burn down a residence. The Crown argues that the fact that Mr. Weitzel’s car was captured on video approaching the subject house with its lights off is indicative of the pre-planning employed by Mr.

Weitzel. [ 22 ] The Crown suggests that sentencing principles of denunciation and deterrence must be preeminent when dealing with a crime of this nature. [ 23 ] It is notable that the maximum penalty for arson is 14 years but the maximum penalty for the offence before the court (arson with disregard for human life) is imprisonment for life. [ 24 ] It is an unfortunate component of this event that the home owners of the subject house in Blumenort were the only immigrant family in the community and as a result of this crime, left their home immediately after this event and permanently left the community. [ 25 ] The victim impact statement from Moses and Christine Adebayo says the following: Emotional Impact. . .

At first, we had to vacate the home and the community. My wife and I lost [weight]. We did not also go to work for a week. We thought that we were unwanted in Canada. We were sick and were emotionally and mentally distraught. We were so terrified such that we could not go out nor visit people. Physical Impact. . . The memory and scars keep occurring like a nightmare. The event is so scary. . . . Fears for Security. . . We are still living in fear at the moment. We wouldn’t know if someone is going to attack us again. [ 26 ] It is a mitigating factor in this sentencing that Mr.

Weitzel has plead guilty, saving the complainants from having to testify and re-live the night of this incident. [ 27 ] The mitigation afforded to the guilty plea is reduced somewhat by the fact that the offender left DNA on a broken window in the back of the house and his vehicle was captured on video in the relevant area at the time of the offence. [ 28 ] There is little in the PSR which speaks to Mr. Weitzel’s remorse other than the following from page two of the PSR: “[T]he

subject advised he will accept whatever sentence the Court hands down and there needs to be consequences for his actions.” [ 29 ] As to the offence itself, Mr. Weitzel told the reporter: In discussing the offence, the subject advised it was a “bad night” and he was angry. He advised he ended up setting the wrong house on fire, indicating no one was supposed to be home at the time. He further added he “did not like the guy” [whose] house he had intended to set fire to. He was unable to explain why he did not like his intended victim.

Reflecting, he noted he was experiencing work and money related stress at the time, and struggles with anxiety. [ 30 ] It is noteworthy that the fire was reported shortly after 3:30 a.m., a time when, logically, anyone living in a house would be home. [ 31 ] The fundamental principle of sentencing found at

section 718.1 of the Criminal Code says that: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender . [ 32 ] In this case, the gravity of the offence is obvious. A firebombing of a residence in the middle of the night would undoubtedly rank as one of the most traumatic things that could happen to a family. [ 33 ] Mr. Weitzel’s responsibility is complete.

There is no suggestion or information as to other potentially mitigating factors. [ 34 ] Because the PSR, as earlier set out, includes a statement from Martha Giesbrecht as to her son being FASD when they took him into their home, I asked defence counsel to obtain any available reports or information as to assessments, etc. as to this diagnosis.

This matter was adjourned for several months for that purpose, but I was ultimately advised that there was no other information available. [ 35 ] In this regard our Court of Appeal said the following in R v JMO , 2017 MBCA 59 (at para 72 ): A reduction of moral blameworthiness for the purposes of sentencing, either for an adult or a young person, due to a recognized and properly diagnosed mental illness or other condition where the functioning of the human mind is impaired, is a “fact-specific” case-by- case determination as opposed to an automatic rule that the mental illness or cognitive limitation necessarily impacted the commission of the offence in question . [ 36 ] As well, at paragraph 73 that case cautioned judges against: [A]ssuming an offender’s moral blameworthiness for an offence is reduced automatically because he or she has a mental illness or other cognitive limitation.

It is suggested that, when sentencing offenders with a mental illness or some other form of cognitive limitation, such as a form of FASD, sentencing judges keep separate and properly assess the following questions: 1. Is there cogent evidence that the offender suffers from a recognized mental illness or some other cognitive limitation? 2. Is there evidence as to the nature and severity of the offender’s mental circumstances such that an informed decision can be made as to the relationship, if any, between those circumstances and the criminal conduct? 3.

Assuming the record is adequate, the sentencing judge must decide the offender’s degree of responsibility for the offence taking into account whether and, if so, to what degree his or her mental illness or cognitive limitation played a role in the criminal conduct. [ 37 ] In this case, as stated above, the only evidence as to Mr. Weitzel suffering from FASD is the statement from his mother.

In my opinion that is insufficient for me to make an informed decision as to whether he has a cognitive limitation and as to whether, if he does, what relationship that might have with the offence before the court. [ 38 ] The principles of sentencing at

section 718 require judges to protect society etc. by imposing just sanctions that have one or more of the following objective: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[ 39 ] In this case, this is an offence of intrusive violence with the potential for significant harm. This offence must be significantly denounced. As well, this offender and others must realize that consequences for offences of this nature will be significant. An appropriate disposition must deter Mr. Weitzel, as well as anyone else so inclined. As per

section 718(c), the gravity of this offence balanced with the circumstances of the offence and the offender may require separation from society. As per

section 718(d), Mr. Weitzel is very young and any appropriate disposition must take into consideration the possibility and hope for rehabilitation. There is nothing in the information before the court which would indicate that this young man is anything but a good candidate for rehabilitation. [ 40 ]

Section 718.2(

d) says that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”. [ 41 ] To that end, Defence has suggested that an appropriate disposition in this matter is a conditional sentence order. [ 42 ]

Section 742.1 of the Criminal Code sets out the regime for conditional sentences. [ 43 ] In this case, balancing all of the sentencing principles discussed above, I am satisfied that a penitentiary term is not required to meet the principles of sentencing. Given the fact that Mr. Weitzel has no previous criminal record and there is no evidence of violent behaviour in his background, I am satisfied that service of his period of incarceration in the community would not endanger the community. [ 44 ] As stated earlier, an appropriate sentence in this case must denounce a significantly dangerous criminal act.

In R v Proulx , 2000 SCC 5 , the Supreme Court said at paragraph 102: Denunciation is the communication of society's condemnation of the offender's conduct. In M. (C.A.), supra , at para. 81, I wrote: In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App.

R. 74 , at p. 77 : “society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass”. Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation.

This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances. [ 45 ] Given the gravity of the offence before the court and the circumstances of this offender, I am not satisfied that a CSO would meet the requirements of the principles of sentencing particularly as to denunciation and deterrence.

In my opinion, these requirements can only be met by a period of incarceration in a custodial setting. [ 46 ] However, I am mindful of this offender’s age, the fact that he is employed and is otherwise a productive member of society. Accordingly, Mr. Weitzel is sentenced to a period of 12 months in jail.

His period of incarceration is to be followed by 18 months of supervised probation with the conditions that he report within 48 hours of his release from custody; attend any and all counselling as directed; attend the Addictions Foundation of Manitoba (AFM) for an alcohol assessment and follow all recommendations made therein; abstain absolutely from all intoxicants; not attend any place where alcohol is sold, other than a licensed restaurant; not have contact with Moses and Christine Abedayo; not possess any incendiary devices; and pay $800 in restitution to Moses and Christine Abedayo by August 1st, 2024. [ 47 ] In addition, there will be a

section 109 10-year weapons prohibition and a secondary DNA order, the sample to be taken while in custody. Costs and surcharges are waived. Original signed by Judge Allen H. L. ALLEN, P.J.