Beach attacker sentencing delayed as lawyer alleges breach of rights during Thomas Kruger-Allen's arrest

Photo: Contributed

Sentencing for the man guilty of a brutal attack on a stranger at Okanagan Beach hit a snag Wednesday, as counsel for defendant Thomas Kruger-Allen revealed he was planning a Charter challenge with respect to the circumstances of his client's arrest in 2019.

Kruger-Allen pleaded guilty to the May 2019 one-punch assault that left Brad Eliason, then 28, in a medically-induced coma after brain surgery, and facing seizures for the rest of his life.

Court proceedings to finally sentence Kruger-Allen for the crime began Tuesday in Penticton, and were expected to wrap up Wednesday, until his lawyer James Pennington began proceedings by announcing his intent to file a Charter of Rights and Freedoms challenge, saying Kruger-Allen was prepared to testify about the circumstances of his arrest.

Justice Geoffrey Gomery immediately had concerns, given that he had previously granted a motion to allow Kruger-Allen to appear via video from custody, rather than the customary in-person standard for sentencings.

"There is a real issue as to whether the court can conduct a portion of the trial that involves the taking of evidence via video,” Gomery said.

“I granted the [request] to attend by video on the basis that I would not have to be hearing from him in person other than the right of allocution [a formal statement made to the court], and there certainly wouldn’t be a cross-examination conducted.”

The Crown is seeking five to six years' incarceration for Kruger-Allen, while Pennington has asked for a lighter sentence between 12 and 18 months. Kruger-Allen is entitled to 783 days of credit for time served, according to the Crown, which would be subtracted from any sentence imposed by the judge.

It was Crown's understanding that the defence's sentencing recommendation would not be altered by the result of any Charter challenge.

Nonetheless, proceedings were adjourned until Friday, March 5, ostensibly to allow Kruger-Allen to attend in person for the Charter challenge discussion.

But before adjournment Wednesday, Justice Gomery allowed both sides to conclude their sentencing arguments.

Pennington reiterated his argument from Tuesday that Kruger-Allen, 23, is remorseful and deserves another chance.

Crown counsel Nashina Devji reiterated her support for a lengthy sentence that would place Kruger-Allen in federal rather than provincial penitentiary custody, citing more programming and funding available in federal facilities for Indigenous offenders.

Kruger-Allen also got to have his say.

"I am truly sorry for what happened," he said over video from Okanagan Correctional Centre, adding that he has a history of trying to drown pain and trauma from his upbringing with alcohol.

He addressed the victim, Eliason, by saying "Maybe he can forgive me when he’s ready, if he’s ready ever ... I just hope one day that I can make it right."

The matter will continue in Penticton Supreme Court next Friday.

Kruger-Allen is also facing more charges related to an alleged home invasion that took place in October 2019, while he was out on bail for the charges related to the attack on Eliason.