Moses Mahilal and his girlfriend Sarah Walsh sensed trouble as they entered her mother’s house just after 3 a.m. on July 31, 2011 and found the side door ajar.
They became even more alarmed when they saw a large pair of black, high-top Air Jordans at the bottom of the staircase leading to the second floor where her mother, Kimberly Walsh, was asleep.
Mahilal, 26, made a beeline for the kitchen, grabbed a large knife and ran upstairs where he confronted the intruder hiding behind the door of Kimberly Walsh’s bedroom.
Within minutes, the wounded intruder, Kino Johnson, 33, was gone, and hours later Mahilal, was under arrest and charged with aggravated assault. A preliminary hearing is set for Sept. 11.
The case highlights the much-debated subject of how much force is too much when a stranger attempts to steal your property or break inside your house.
Johnson has already admitted he was unlawfully inside the upscale home near Keele St. and Eglinton Ave. W. On June 28, he pleaded guilty in Ontario Superior Court to break and entering and two counts of possessing stolen property, including jewelry taken after he broke into an unoccupied Finch Ave. W. highrise apartment.
Johnson “gained access by unknown means” to the Walsh residence, and, once inside, “one of the victims armed himself for safety,” Crown attorney David Fisher said reading from an agreed statement of facts.
A “struggle ensued,” and Johnson received a stab wound to his chest and lacerations to his hand and leg, Fisher said.
Johnson’s lawyer, Jason Forget, told court his client almost died from his injuries.
“I did almost lose my life so the way I look at things is completely different. I wake up every morning and I give God thanks,” Johnson told Justice Mary Lou Benotto before being sentenced. “I want to be good to society and turn my life around.”
Benotto asked Johnson how he might feel if his mother — who was in the courtroom — woke up in the middle of the night to a stranger in her bedroom.
“That’s what you did to somebody. The effect on a person can last forever,” the judge told him.
There was no mention that Johnson initially told police he went to the house, about a seven minute walk from his apartment, to buy a small amount of weed from someone he didn’t know. Police searched the home and found nothing illegal.
Johnson, who had convictions for robbery, assault and theft under, was sentenced to 20 months in jail. Taking into account his pre-trial custody, Johnson had eight months left to serve as of June 28. He was also placed under two years probation.
In light of Johnson’s guilty plea, Mahilal’s lawyer, Daniel Brown, is mystified why the Crown is proceeding with its case.
“We give people like this medals, not criminal records,” Brown said in an interview this week. The intruder “may have been armed or may have been violent or had accomplices. My client acted appropriately, under the circumstances.”
In a brief statement to police the next morning, Mahilal insisted he was acting in self-defence and protecting “loved ones.” He lives in the home with his girlfriend and her mother.
“I don’t think I should get charged at all because I was more endangered than he was,” a dazed looking Mahilal told two police officers. “Me, my girlfriend and her mom were in danger, it doesn’t make sense. All I did was defend myself.”
Three weeks later, while still recovering in hospital, Johnson gave police a different version of the encounter. The Crown provided his audio-taped statement, and other witness statements, to the defence as part of its disclosure obligation.
Johnson said Mahilal — whom he didn’t identify by name — first slashed his hand while he tried “to explain.”
Johnson said he ran downstairs, tried to put on his shoes, when Mahilal, who was “going crazy,” stabbed him again in either the chest or leg. “I know he was aiming for my heart,” he said. Johnson said he was stabbed a third time, outside, when he “opened the gate.” He ran home, bleeding badly, and leaving behind one black Air Jordan.
Hours after the incident, Sarah Walsh told police that after Mahilal grabbed a knife, they went upstairs and suddenly the intruder “came out of … nowhere.”
“I’m grabbing him and punching his back, my mom is behind us in a nightgown.”
Everyone was “freaking out and screaming” and the intruder and Mahilal were struggling when she called 911, frantically telling the operator “someone is in my house, I found someone in my house.” She told police Mahilal was trying to hold onto him so police could arrest him.
Kimberly Walsh, who was awakened by screaming and watched some of the struggle in her nightgown, told police Mahilal had hold of Johnson and was pushing him down the stairs. She heard Johnson say “don’t hurt me” but didn’t see him leave.
Toronto police will not comment on the case because it is before the courts.
“An investigator’s job is to determine if there is sufficient evidence to charge someone,” explained Toronto police spokesman Mark Pugash. “It is not the investigator’s job to determine whether or not the person charged is guilty of the offence. That is the job of the courts.”
The Canadian government recently passed legislation designed to expand the legal powers of a private citizen to make an arrest and it applies in a situation like this, Brown said.
The Citizen’s Arrest and Self Defence Act permits “the reasonable use of force, taking into account all the circumstances of the particular case,” says a backgrounder posted on the Department of Justice website. However, “a person is not entitled to use excessive force in a citizen’s arrest.”
The new law was nicknamed the Lucky Moose bill, after the case of David Chen, the owner of the Lucky Moose food mart in Toronto’s Chinatown. He was charged with forcible confinement and assault after he and colleagues tied up a career thief and tossed him in a delivery van.
Chen was acquitted and Mahilal will ask a jury of his peers for the same outcome, Brown said.
A person found guilty of aggravated assault is liable to imprisonment for up to 14 years.