R. v. Berg Date:, 2016 BCPC 379

Citation: R. v. Berg Date: 20160811 2016 BCPC 379 File No: 212623-2-K-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. TIMOTHY RALPH BERG ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. GAFFAR Counsel for the Crown: M. Fortino Counsel for the Defendant: J. Percival Place of Hearing: Surrey , B.C. Date of Hearing: January 11 and 12, 2016; February 29, 2016; March 1 and 2, 2016; April 5, 2016, July 29, 2016

Date of Judgment: August 11, 2016 [ 1 ] At trial, Timothy Berg was charged with two offences: arson that destroyed an occupied residence and property, as well as uttering a threat to burn down that property. At trial, he admitted that he uttered a threat or threats to burn down the same property.

He was convicted of the arson. [ 2 ] The Crown seeks a sentence of five to seven years incarceration for the arson offence, less time served, with a concurrent sentence of one year on the uttering threat offence, plus related orders regarding DNA and firearms, et cetera. [ 3 ] The defence seeks a sentence of two to three years in custody, less time served. Generally, after all calculations, Mr. Berg is eligible for 411 days of time served as of August 11, 2016. [ 4 ] During the course of October 9 th and into the early morning of October 10, 2015, Mr.

Berg threatened to burn down the house of his ex-girlfriend if she did not speak to him on the telephone. Mr. Berg eventually set fire to the residence occupied by his ex- girlfriend and two other individuals, in the middle of the night. The fire destroyed much of the home and damaged adjacent properties. The home had to be demolished. [ 5 ] In sentencing Mr. Berg, I must apply and balance the sentencing principles in s. 718 through 718.2 of the Criminal Code as I consider the circumstances of the offences and the offender.

Some principles of sentencing may require more emphasis than others, in all the circumstances. I must also assess any aggravating and mitigating factors arising from the circumstances of the offence and the offender. OVERVIEW: Circumstances of the Offence: [ 6 ] The Reasons for Judgment for Conviction were delivered on April, 28, 2016. The circumstances and findings of fact are detailed in those reasons and I do not intend to repeat them in the same manner again. Generally, in the months prior to October 2015, Mr. Berg and Ms. Deborah Segal had an intimate relationship that she ended due to Mr. Berg's alcoholism.

In the days before October 9 th , Mr. Berg made constant, numerous and persistent telephone calls and contact with Ms. Segal. For example, on October 8, 2015, he called or tried to call Ms. Segal 26 times. [ 7 ] On October 9 and 10, 2015, Deborah Segal, Barbara Neuman and Nathan Davidowich resided in a house located in Surrey, British Columbia. On October 9 th , Mr. Berg again called several times, demanding to speak to Ms. Segal. He only ever spoke to Ms. Neuman. Ms. Segal refused to speak to Mr. Berg. Ms. Neuman conveyed the message, or messages, to Ms. Segal on each occasion. Mr.

Berg was clearly intoxicated at all times. [ 8 ] At some point during those calls, Mr. Berg began to threaten that he would burn the house down if Ms. Segal did not speak to him. Later that evening, Ms. Neuman saw Mr. Berg light a firecracker and launch it at the back of the house/deck area. He continued to make telephone calls and threats to burn the house down. [ 9 ] Mr. Davidowich returned home later that evening and went to sleep; Ms. Segal and Ms. Neuman remained awake. [ 10 ] Shortly before the fire began, Mr. Berg telephoned again and told Ms. Neuman that he would burn the house down if Ms.

Segal did not call him back in five minutes. Ms. Segal called him back shortly thereafter, but Mr. Berg did not answer the telephone. Within approximately five minutes, the back deck area was on fire. Ms. Segal, Ms. Neuman and Mr. Davidowich were able to escape the fire, which eventually destroyed much of the house. It has since been demolished. The fire caused considerable damage to the adjacent homes which were occupied at the time, and also had to be evacuated. One of those adjacent homes contained sleeping children. Many other surrounding neighbours were also evacuated from their homes.

Several fire-fighters and police officers attended to deal with the growing fire and safety issues. [ 11 ] A few hours later, Mr. Berg called Ms. Segal while she was speaking to a police officer. The officer recorded the telephone call. In that call, Mr. Berg directly linked his setting the fire to her refusal to speak to him. In the Reasons for Conviction, I noted that his sense of entitlement that Ms. Segal should have called to speak to him immediately or return his calls coloured this entire conversation.

At that time he seemed to lack total and complete insight into the harassing nature of his contact with Ms. Segal. I accept that some of his conduct was significantly fuelled by alcohol. Circumstances of the Offender: [ 12 ] There were two reports prepared concerning Mr. Berg: the first is a pre-sentence report completed on July 13, 2016; the second is a psychological assessment completed on July 21, 2016. I am not going to summarize in any detail the pre-sentence report. I only note that by the time this report was prepared on the 13 th of July, Mr.

Berg demonstrated the following insight and understanding regarding his offence. Mr. Berg admitted to the pre-sentence report writer that he acted impulsively after drinking alcohol heavily, and indicated he was remorseful for his actions. He was thankful no one was hurt. He also expressed to the writer of the pre-sentence report that, while he does not wish to reside in a recovery house, he was open to staying at a treatment facility.

He explained that he was open to any interventions that the court might impose on him, including forensic psychiatric intervention, should he be granted a community disposition. [ 13 ] I note that the pre-sentence report writer indicated that his or her review of the B.C. Community Corrections case file showed that Mr. Berg was an unreliable reporter to Community Corrections, and frequently missed even rescheduled probation and forensic appointments.

[ 14 ] The psychological assessment was prepared by a Masters student, D. Struv, and a registered psychologist, K. Whittemore. I will refer to the writer as "Dr. Whittemore". I note that Mr. Berg was interviewed on June 28, 2016, for three hours. This appears to be an interview that occurred prior to that for the pre-sentence report. [ 15 ] The background of Mr. Berg indicates that he grew up in Calgary, Alberta, in a single-parent home. His father left the family while he was quite young. His father was an alcoholic. Mr. Berg had three brothers and a sister.

He indicates that his brothers are also alcoholics now, as is Mr. Berg. Mr. Berg indicated that he would be physically disciplined at the home, and over the years has lost contact with both his mother and his siblings. [ 16 ] He demonstrated difficulties with his attention and concentration as a child, and was taking Ritalin for some time. He dropped out of school in Grade 6 after experiencing significant physical and emotional abuse at the hands of his teachers. [ 17 ] Since that time, Mr. Berg has lived in what he described as a transient lifestyle, with numerous prison sentences and frequent homelessness.

It should be noted that while serving a penitentiary term, he obtained qualifications in an auto mechanic program in British Columbia. He worked as an auto mechanic for approximately 25 years. He was unable to work after suffering a number of medical issues, which I will explain in a moment. [ 18 ] Mr. Berg has had a significant relationship, a ten-year relationship, from which he has two now adult children. Mr. Berg, in 2000, suffered a severe head injury. He also suffered a head injury at some other unknown time when he struck his head at a Skytrain station, having fallen off the escalators.

He also suffers from a degenerative disc disease. Both of these health issues have severely impacted on his ability to work. [ 19 ] Mr. Berg started drinking alcohol when he was 11 years old. Since that time, his alcohol consumption has become entrenched. He has been hospitalized on a psychiatric ward and experienced several difficulties with the criminal justice system. He has experienced vocational, interpersonal and physical as well as psychological difficulties due to his drinking. He has also been a drug user. [ 20 ] What is clear to me from the contents of the psychological assessment is that Mr.

Berg does not appear to understand the impact that alcohol and illicit drugs has on his mental health, or on his mental health when he is taking mental health medication. [ 21 ] Mr. Berg also suffers from depression which has resulted in a number of suicide attempts. I also note that his general character, as described by others, is that he is a very angry person. He explained to Dr. Whittemore that he felt able to manage his anger in the past, but could not do so in the weeks preceding the events of October 2015. He did tell Dr.

Whittemore that there is a medication that alleviates his levels of anger and feelings of frustration. [ 22 ] Mr. Berg indicated that he and Ms. Segal had an intimate relationship prior to the events that bring him to court. He explained to Dr. Whittemore that he would stay with her for four or five days in a row, and then go back to his residence. He also explained that he had a "co-dependent personality with her", and I am going to quote the report now from page 7: He explained that he "had to be with her" and "could not see what life could be without her".

He acknowledged that this may be a pattern in his relationships and commented that "things went wrong" because of "control issues" and "power struggles". [ 23 ] With regards to the arson and uttering threats offences, Mr. Berg told Dr. Whittemore that he felt he was being ignored by Ms. Segal. He felt that he was being "taunted" and wanted to "show them (he) doesn't make idle threats". [ 24 ] A little later he said the following: He explained that people tend to take his threats seriously but that Ms.

Segal did not, which angered him. [ 25 ] He also indicated the following with regard to his insight: He indicated that he did not feel bad about burning the house down as it was "proceeds of crime" and "no one was hurt". He added that he "did them a favour" as the house was "rat and bug-infested". He ended his explanation by saying, "Yeah…I made my bed, I guess I gotta sleep in it." [ 26 ] Dr. Whittemore reviewed Mr. Berg's mental health history. Between the student and Dr. Whittemore, I can see that a number of psychological tests were applied to Mr.

Berg, the end result of which the following diagnosis was made. First: Dr. Whittemore wanted to rule out any additional neurodevelopmental disorder beyond Attention Deficit Disorder. Dr. Whittemore indicated that it is likely that Mr. Berg's neurodevelopmental difficulties are compounded by a neurocognitive disorder due to traumatic brain injury. It is possible that his alcohol and drug use might have further affected his cognitive abilities, for example memory. Dr.

Whittemore recommended a further neurological assessment. [ 27 ] Second diagnosis: panic disorder, unspecified depressive disorder. [ 28 ] Third diagnosis: alcohol stimulant and opioid use disorders. [ 29 ] Fourth diagnosis: borderline personality disorder, anti-social personality disorder. [ 30 ] A risk assessment was conducted, the end result of which is this: With no intervention or management in place, Mr. Berg represents a high risk to engage in future violence, including intimate partner violence in the community.

On the one hand, he seems to have demonstrated seemingly violence-free periods through his life, yet his

approach to inter-personal relationships and contacts, as well as his lifestyle and choice of social network, appear to foster discord orpotential physical conflicts. In the future, Mr.

Berg's behaviour could range from acts of mild to moderate violence (example, threats,throwing objects, intimidation) in the context of life and interpersonal stressors (eg. conflicts, feeling slighted) to more severe violenceinvolving physical injury or putting others' lives at risk (eg. index offences) when experiencing substantial disinhibitory or destabilizingfactors (eg. alcohol intoxication, medication non-compliance, exacerbation of mental health symptoms, separation from a romanticpartner). Mr.

Berg's mood difficulties, in the context of his personality traits, paired with his impulsivity (as well as other potentialexecutive function difficulties), poor distress tolerance, substance and alcohol use and lifestyle, generates situations where poor outcomesare more likely to take place. In addition, the aforementioned factors also put Mr. Berg at risk of harming unintended targets as well ashimself… An example is given, which I will not quote here. Then, …or to be violently victimized (eg. retaliation).

More stability is expected in custody (ie. routine structure, fewer opportunities foralcohol or substance use, medication compliance) yet with no significant interventions in place and the lack of genuine engagement intreatment programs, little long-term change can be expected. LAW - PRINCIPLES OF SENTENCING: [31] Our criminal laws clearly state that the fundamental purpose of sentencing is to contribute to respect for the law and maintaininga just, peaceful and safe society.

I must impose a just sentence that strives to denounce unlawful conduct, deter the offender and otherpersons from committing offences, separate offenders from society when necessary, and assist in rehabilitating offenders. I must alsoseek to provide reparations for harm done to victims or the community (where applicable), to promote a sense of responsibility inoffenders, and to provide an acknowledgement of how victims and the community have been harmed. [32] In R. v.

Nasogaluak, 2010 SCC 6 , [2010] 1 SCR 206, at paragraph 43, the Supreme Court of Canada stated that nosingle sentencing objective trumps the others. I must determine which objectives merit the greatest weight in the circumstances of eachcase. In making my decision, I must consider the aggravating and mitigating circumstances of the offender and the offence. [33] In R. v. Nur, 2015 SCC 15, at paragraphs 41 to 42, the Supreme Court of Canada indicated that I must consider the followingfactors and sentencing principles: (

a) any aggravating and mitigating factors, including those listed in s. 718.2(1)(

i) to (iv); (

b) sentences should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances [s.718.2(b)]; (

c) where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh [s. 718.2(b)]; and (

d) the courts must exercise restraint in imposing imprisonment [s. 718.2(

d) and (e)]. [34] At paragraph 42 in Nur, the Supreme Court of Canada reiterated that when I reconcile these different sentencing objectives, thefundamental principle of sentencing in s. 718.1 requires that a sentence must be proportionate to the gravity of the offence and the degreeof responsibility of the offender. The Supreme Court of Canada in R. v. M. (C.A.) (1996), (SCC), 105 C.C.C. (3d) 327,at paragraph. 81, also stated that a sentence must properly reflect the principle of retribution and the moral blameworthiness of theparticular offender.

LAW - RANGE OF SENTENCES FOR ARSON OF OCCUPIED RESIDENCES: [35] I have considered the cases provided by the Crown and defence counsel. All cases related to the arson conviction; some aredated, some are from outside this jurisdiction. It is difficult to identify a definitive range of sentences from all of the cases. Muchdepends on whether the premises were occupied, the degree of risk to the occupants and neighbouring occupants, the extent of propertydamage, and whether the arson was the result of intentional planning or recklessness.

In some cases, the offender's mental health as wellas substance abuse issues impacted their moral culpability, insight, future risk and prospects for rehabilitation. Overall, the differencebetween the ranges of sentences and the Crown and defence cases is difficult to reconcile. [36] The Crown submits that there is no discernible range. I agree. The Crown argues that in these circumstances, the range ofsentence for this offender is between five and seven years in custody, less time served. I found the following Crown cases to be moresimilar or applicable to this case: (

a) R. v. Greely, 1980 BCJ No. 2211, B.C. County Court: The offender was a tenant engaged in a dispute with his landlord's son whilethe offender was moving out of the premises. Immediately after the argument the offender returned to the premises and lit a fire in thestorage room. When the fire did not start, he returned and re-started the fire. It is unclear to me whether the premises were occupied atthe time. The house was destroyed. There was an element of immaturity and vindictiveness. The offender told the landlord's son that"he was going to show him".

There was an element of intoxication and possibly mental health issues. The offender expressed someremorse and admitted he needed to address his alcohol problem. He was sentenced to two years less a day in custody, plus two years'probation. (

b) R. v. Quigley, 1998 BCJ No. 561 BCCA: The offender was a tenant being evicted from a multi-occupancy dwelling after failedadministrative proceedings. He resented the landlords and some of the tenants. Using gasoline, the offender burned a great deal of theproperty. Although it appears that no one was physically injured, the incident caused very substantial emotional impact to at least onetenant. There was some measure of planning and deliberation. The offender had a difficult upbringing and longstanding mental healthissues.

He suffered from a personality disorder and did not willingly seek nor respond to treatment. He did not interact well with others,often leading to conflicts with other people. The offender did not seem to appreciate the enormity of his conduct and was largelyresisting possible treatment. The B.C. Court of Appeal overturned the actual nine-to-ten-year sentence and substituted a five-year

sentence. (

c) R. v. Bevaqua (phonetic), 2014 ONSC 6279 , 2014 O.J. No. 5130, Ontario Superior Court of Justice: The offender wasconvicted of multiple offences arising from an intimate partner situation. The offender and his spouse had ongoing disputes in the dayspreceding the fire. Some of those disputes occurred in cell phone calls and text messages. He physically assaulted her during that time. There was a history of violence in the family. The offender started the fire immediately after another dispute in the middle of the night. His estranged spouse was awake, their children were asleep.

They were all able to escape the fire. One of their cats died in the fire. Thehome does not appear to have been destroyed. His spouse and children had serious and lasting psychological consequences. The arsonwas an escalation in the offender's violent conduct. He had a criminal record for domestic violence. He demonstrated no remorse. Rehabilitation was highly questionable. The court imposed a 4.5-year custodial sentence for arson of an occupied dwelling house. [37] The defence submits that the appropriate range here is two to three years, less time served.

Again, I found the followingdefence cases to be more applicable to this case. (

a) R. v. Campeau, 1999 O.J. No. 2415, Ontario Court of Appeal: Based on the limited details contained in the Ontario Court ofAppeal decision, it appears the offender went outside twice, poured gasoline on the porch attached to the residence, and lit the fire. Thehouse contained a number of sleeping persons, including two children. It does not appear that the house was destroyed as the fire wascontained quickly. The offender demonstrated no remorse. The original sentence of 18 months was upheld by the Ontario Court ofAppeal. (

b) R. v. Jones, 2006 BCPC 278: The offender pleaded guilty to an unrelated matter and arson of an occupied property. The eventsoccurred in a volatile domestic context that played out in the late evening, into the middle of the night. There was no one else in theapartment when the offender lit the fire and departed. The offender was intoxicated. Shortly thereafter, he left a recorded telephonemessage that is extremely similar to the comments made by Mr. Berg to Ms. Segal on the telephone in this case. There were otheroccupants in the building who were evacuated.

The apartment and personal belongings of his estranged partner and their child wereburned. The adjacent suite was damaged. No one appears to have been injured. The family dog was not seen again. He showed littleinsight or remorse about his conduct. He had family support. He acknowledged his immaturity, anger management and alcoholproblems. The offender had taken rehabilitative courses on remand custody. He had release plans identifying specific employment andresidency. The arson resulted more from the offender's recklessness than his intentional conduct.

It was fuelled by his excessive alcoholabuse and his inability to control his anger. The offender received a custodial sentence of two-and-a-half years, less time served. (

c) R. v. Munro, 2007 BCPC 178: The offender and others set fire to a pub which also impacted the adjacent small hotel, restaurant,banquet facility and store. A substantial number of people had to be evacuated from the business complex and neighbouringtownhouses. The financial and emotional costs to the pub owners were "staggering". He was paid to set the fire. The offender was notthe ringleader of this offence. He was young, Métis, and had a drug addiction. Since the event, he had significantly rehabilitatedhimself. He demonstrated insight, remorse, and an acceptance of responsibility.

He had an unrelated criminal record for violence. Theoffender was sentenced to two-and-a-half years in custody. [38] In the particular circumstances of this case and with this offender, I conclude that the range of sentence is between 18 monthsand five years. I adopt several of the comments of Warren, J. in Jones. [39] First, I agree that the principles of denunciation and specific deterrence must be given specific weight in the present case(Jones, at para. 47). Second, I also adopt the comments regarding general deterrence in paragraph 41 in R. v.

Sans, 2004 NBJ 214, NewBrunswick Queens Bench, as cited in Jones at paragraph 46: I think, and as I said earlier, that the principle of deterrence must be considered and is a very important principle in a case such as this. Any sentence here must deter other persons in the community and they must be made aware that this kind of criminal activity will not betolerated. People must not go around and burn other peoples’ homes. People can’t go and set fire to a dwelling in the middle of thenight.

The public must know that setting fire to another persons’ home is not acceptable, that the courts will not tolerate it, that it isserious, it is dangerous and it is unlawful. A clear message must be sent out by the courts to discourage other people from taking thistype of action. [40] Third, I conclude that rehabilitation is an attenuated but still relevant consideration for Mr.

Berg. [41] Fourth, I adopt the following comments by Warren, J. in Jones at paragraphs 56 and 57 concerning what may not be consideredas a relevant, aggravating factor in this type of case: [56] That the property was a dwelling house and occupied is not an aggravating circumstance, because those in fact are the elementsof the offence and likely the reason that the maximum sentence for this offence is life. [57] Likewise, I expect the danger posed to police and fire-fighters is also factored in to that maximum sentence, as it is hard toimagine a fire which does not endanger those persons.

ANALYSIS: [42] Both counsel recognize that denunciation and both specific and general deterrence are the most significant considerations in thiscase. I also accept that the sentence must address Mr. Berg's rehabilitation prospects. However, I must also consider what impact theprinciple of retribution has on the sentence.

As mentioned above, the Crown seeks custodial sentences of five to seven years for thearson conviction, and one year concurrent for the uttering threats conviction, less time served. [43] The defence seeks custodial sentences of two to three years for the arson conviction, and does not appear to dispute theproposed one-year concurrent sentence for the uttering threats. [44] I find the following statutory and other aggravating factors in this case after considering the submissions of the Crown and

defence, as well as the evidence adduced at trial: (

a) Mr. Berg's threats and the arson were specifically directed at his prior intimate partner. His actions constituted domestic violence against Deborah Segal. His conduct was designed to exert control and power over Deborah Segal so that she would take his threats seriously. (

b) The fire endangered the health and safety of the immediate neighbours, including children, who were unconnected to Mr. Berg's personal situation. The fire caused extensive damage to their homes. I note that the Crown is not seeking a restitution order, given Mr. Berg's inability to pay. I also note that the Crown was unable to obtain any victim impact statements from the victims in this particular matter. (

c) A beloved household pet was killed. (

d) Mr. Berg currently presents a high risk for future violence, including intimate partner violence in the community. His future behaviour could range from mild violence (eg. threats, throwing objects, intimidation) to more severe violence involving physical injury or placing the lives of others at risk when disinhibited by substances or anger. He also presents a risk of harming unintended targets, as well as himself. He is vulnerable to being victimized violently.

His fluctuating, slight acceptance of responsibility and somewhat limited insight into the consequences of his behaviour augment his risk to the community. His prognosis is poor without significant engagement in appropriate treatment for all of his problems, not just his alcohol problem. He has indicated that he would like to engage in alcohol treatment and learn to deal with his psychological and neurological issues. [ 45 ] The problem for Mr. Berg is that he has attempted to engage in some forms of treatment in the past without true compliance or effort. Mr.

Berg's moral blameworthiness is substantial, and his actions require strong denunciation. I agree with the Crown that this was not simply a reckless act of vandalism; it was a targeted act to demonstrate his anger. The link between the threats and the arson indicate both the intentional and dangerous nature of Mr. Berg's actions. [ 46 ] Mr. Berg was fully aware that the house was occupied by the two women at the time, if not Mr. Davidowich. All occupants lost personal belongings in the fire.

His moral blameworthiness is somewhat attenuated by his extreme state of intoxication at the time, and his neurocognitive dysfunction, both of which impair clear thinking. Given his longstanding and profound alcohol problem, his voluntary consumption does not elevate his moral blameworthiness. [ 47 ] I do not consider Mr. Berg's criminal record to be an aggravating factor. It reflects a sustained alcohol problem and anti-social behaviour.

The convictions that would cause the most concern, for example, uttering threats, mischief and assault, are all dated. [ 48 ] The defence submits, and I find the following to be the mitigating factors. (

a) Mr. Berg has some limited remorse and acceptance of responsibility. (

b) Mr. Berg had a traumatic and dysfunctional background which includes a family history of alcoholism, as well as a difficult personal history. Mr. Berg became a ward and was separated from his family for significant periods of time of his childhood. Despite these difficulties, he maintained steady employment for extended periods of time until his physical and mental health prevented him from working in the automotive mechanic industry. He also maintained a long-term relationship for approximately ten years. (

c) Mr. Berg has a multitude of medical difficulties. He has suffered from depression and other psychological difficulties as an adult. He was not taking his medication at the time of the offence but was self-medicating with alcohol. He experiences panic or anxiety attacks. He has been placed in forensic and general psychiatric facilities in the past due to his mental health difficulties. His brain injury and back injury have impacted his ability to function physically and mentally. (

d) Mr. Berg has demonstrated some insight into his health problems and offending conduct. He initiated the preparation of a psychological assessment for this sentencing. He is prepared to enter serious treatment for his alcoholism and to try to better understand his mental health problems. He has been stabilized on his mental health medication since October of 2015. (

e) He was placed on the mental health unit during his pre-trial custody. This substantially restricted his movements beyond levels experienced by other inmates. [ 49 ] These aggravating and mitigating factors apply equally to the uttering threats conviction. The principles of denunciation, deterrence and retribution also require a higher than usual sentence for the uttering threats conviction. In these circumstances, those threats amounted to a statement of intention, not idle threats.

CONCLUSIONS: [ 50 ] After considering all of the aggravating and mitigating factors, as well as the requisite legal principles of sentencing, I impose a sentence of 3.5 years in custody for the arson conviction. I impose a sentence of one year concurrent for uttering threats. But for Mr. Berg's health problems and his initiative to better identify and treat his health issues, I would have imposed a higher sentence to reflect the principles of denunciation, deterrence and retribution. However, rehabilitation is still a live issue for Mr. Berg.

The public is best protected by both his incarceration and his treatment. [ 51 ] I find that Mr. Berg has spent 307 days in custody after his arrest. After credit for time served, he would have been entitled to 460.5 days of credit. After his arrest he was sentenced on other matters, 50 days in custody after credit calculated. Consequently, Mr. Berg will receive credit for time served of 411 days (ie. one year and 46 days).

With a sentence of 3.5 years, that is a total of 1,095 days, less 441 days, to leave a remaining 654 days which equals one year, 289 days, or in other words, one years, nine months, 19 days. [ 52 ] I make an order under s. 487.051 of the Criminal Code for DNA to be taken from Mr. Berg.

[ 53 ] I make an order under s. 109 of the Criminal Code that Mr. Berg is banned for life from possessing or using firearms. [ 54 ] I make an order under s. 743.21 that Mr. Berg have no contact with Deborah Segal, Barbara Neuman, Nathan Davidowich, or Steven Swanson while in custody. [ 55 ] Given all of the information I have about Mr. Berg's current circumstances, Ms. Percival, may I presume that he would be unable to pay any victim fine surcharge? [ 56 ] MS.

PERCIVAL: That's correct, Your Honour. [ 57 ] THE COURT: I therefore impose the victim fine surcharges but make them payable forthwith, and find that he is in default and I sentence him to one day in custody in default on each item, concurrent to each other and concurrent to the arson sentence imposed. [ 58 ] MR. FORTINO: If I might just have a moment, Your Honour, I think there might be an issue with respect to the calculation… [DISCUSSION] [ 59 ] THE COURT: The sentence is, on the arson, 3.5 years. That is the equivalent of 1,277.5 days, less time served of 441 days.

That leaves a sentence of 836.5 which I am rounding down to 836. That is the equivalent of remaining time of 836 days, or in other words, two years, 106 days. [ 60 ] THE CLERK: Your Honour, for the purposes of our [indiscernible] -- [ 61 ] MR. FORTINO: The days. [ 62 ] THE CLERK: [indiscernible] [ 63 ] THE COURT: That's fine. [ 64 ] MR.

FORTINO: Given that that is a penitentiary sentence, 743.2 states that: A court that sentences or commits a person to the penitentiary shall forward to the Correction Service of Canada its reasons and recommendation relating to the sentence or committal, any relevant reports that were submitted to the court, and any other information relevant to administering the sentence or committal. [ 65 ] THE COURT: I make that direction. [ 66 ] MR.

FORTINO: I'd ask you to direct that your Reasons for Judgment and your Reasons for Sentence, along with the psychological report and the pre-sentence report, be sent to the Correctional authorities, please. [ 67 ] THE COURT: Ms. Percival, is there anything else you would like sent to Corrections? [ 68 ] MS. PERCIVAL: No, Your Honour, I think that really that does cover it. [ 69 ] THE COURT: All right. I make that order. (REASONS FOR SENTENCE CONCLUDED)