R v Kruger-Allen, 2021 BCSC 445

An Indigenous man is sentenced to almost three years for assaulting three young people, with one count stayed. He has significant Gladue factors and has shown receptivity for rehabilitation, if he can get his substance abuse addressed while incarcerated.

Indigenous Law Centre CaseWatch Blog

On a stretch of beach in the City of Penticton, a group of young people were socializing at a firepit. Mr. Thomas Kruger-Allen was among them, and under the influence, groped a woman. She protested and Mr. Kruger-Allen punched her in the chest. Another young woman intervened and he punched her in the chin. Many bystanders gathered to watch the altercations, where on Mr. Kruger-Allen attempted to leave. On his way out he punched a young man who was inquiring what was happening. The blow had enough force that it not only incapacitated the young man, but he fell and his head struck the concrete, resulting in long lasting injuries. Mr. Kruger-Allen fled the scene and was arrested at his trailer. Because the police did not provide a warrant, there was also a Charter challenge from Mr. Kruger-Allen’s defence. Mr. Kruger-Allen has pleaded guilty to assaulting both young women, and to an aggravated assault of the young man and is now to be sentenced.

Mr. Kruger-Allan has significant Gladue factors. He is Indigenous from Penticton Indian Band on his mother’s side. There is severe intergenerational trauma, including substance abuse, domestic violence and neglect. He spent time in foster care and never received the proper supports to deal with his anger issues. Despite the difficult circumstances of his upbringing, Mr. Kruger-Allen completed grade 12 and found employment working for a cousin as a drywaller for three years, until he was remanded into custody in connection with these offences. His employer appreciates his work ethic and would hire him back. Mr. Kruger-Allen began counselling which has shown very beneficial to his path for healing.

Mr. Kruger-Allen does have a previous criminal record that includes three convictions for breach of an undertaking or recognizance, all apparently involving broken bail conditions, and a related conviction for an assault. He was out of jail on a recognizance of bail that included a condition that he abstain from the consumption or possession of alcohol. He was in breach of that condition, having drunk a great deal on the night of the assaults. While in custody, Mr. Kruger-Allen has had to abide by institutional rules. He did very poorly at first. His institutional convictions include possession of contraband, threatening or abuse of staff, assault of another inmate, disobeying staff direction, and obstructing an officer. His conduct improved over time. While in prison, Mr. Kruger-Allen has completed courses in living without violence and substance abuse management. His supervising probation officer reports that he was hostile, insolent and indifferent at first, and has demonstrated significant improvements in his attitude, insight and maturity.

Despite notable aggravating factors, there are also significant mitigating factors, including Mr. Kruger-Allen’s Indigenous background. This mitigates but do not eliminate his moral blameworthiness (R v Finlay, 2016 BCCA 299), however, the objective of rehabilitation carries particular weight in this case. Mr. Kruger-Allen is sentenced to imprisonment for the assault on the young man for five years less two years and 68 days, with a net sentence of two years and 297 days. Another count has been stayed, and the assaults on the young women is a net sentence of one day in jail, to be served concurrently.

As for the police breach of Mr. Kruger-Allen’s rights by entering into his residence to arrest him without a warrant, section 529.3 of the Criminal Code permits the police to enter into a residence to effect an arrest even without a warrant, if the conditions for obtaining a warrant exist. The officers’ objective was lawful as it was to take Mr. Kruger-Allen into custody. Their entry into the trailer was momentary, and ended as soon as they had him in custody. The police did not use excessive force. Mr. Kruger-Allen was not injured. He waited until the middle of his sentencing hearing to raise the matter. In sum, the officers’ misconduct was not egregious (R v Bacon, 2020 BCSC 1377; R v Punko, 2010 BCCA). A right-thinking Canadian would not consider that the police actions in this case gave rise to an abuse of process or did violence to the shared values of society.

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