How  far  can  we  go  to  protect   ourselves  in  our  homes? 

This is a difficult question to answer because no two situations are exactly the same. If you're inside your home, you have increased protection under the law. That means that you can be justified in using deadly force, even if the perpetrator isn't armed. But to do that, you must later prove that you or some other person in your home was a risk of being killed or seriously injured by the intruder.

A person’s home is his castle, so to speak and it thusly is sacrosanct. There have been incidents both in the United States and in Canada where the homeowners have used excessive force to stop the intruders from carrying on with their evil deeds.

In the American case, a home owner came home and found his wife being raped by an intruder. The husband grabbed a heavy table lamp and with all the force he could muster, he beat the intruder on his head until the intruder died. The first strike would have been sufficient however the husband decided to kill the man raping his wife and this he did. He was never charged with the death of the intruder. 

In the Canadian case, a number of men invaded a home and subjected the family to real terror. The family fought the intruders and managed to fight them off. During the struggle with one of the intruders, the intruder’s eyes were gouged out. No charges were laid against any of the people living in the house.

There is no doubt in my mind that had charges bee laid in either of these two cases, there would have been a conviction in both cases. The convictions would be related to the homeowners and/or families using excess force.

Section 41 of the Canadian Criminal Code states that—

(1)     Everyone who is in peaceable possession of a dwelling-house or real property is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.        

 What follows is an interesting Canadian case where it would appear that more force was used than necessary. That hasn’t been established as of yet in a court of law.

 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 shoes at the bottom of the staircase leading to the second floor, where her mother, Kimberly Walsh, was asleep.

Mahilal, age 26, ran to the kitchen and grabbed a large knife and then ran upstairs, where he confronted the intruder, Keno Johnson, age 33 who was hiding behind the door of Kimberly Walsh’s bedroom. Kimberly was not molested in any way.

Johnson has admitted in court that he was unlawfully inside the upscale home in Toronto. On June 28^th 2012, he pleaded guilty in Ontario Superior Court to break and enter and two counts of possessing stolen property, including jewelry taken after he broke into an unoccupied Finch Ave. W. high-rise apartment. Johnson, who also had previous convictions for robbery, assault and theft, 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.

Now here comes the interesting part of this story. Johnson told the police (who arrested him shortly after the break-in) that Mahilal had struck him a number of times with the kitchen knife. He said that Mahilal struggled with him to apprehend him and during the struggle, he ran downstairs, tried to put on his shoes, when Mahilal, who he says 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 shoes.

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.”

Now there is no doubt in my mind that at this particular moment, both Walsh and Mahilal would have been very frightened. Mahilal said to the police, “I’m grabbing him and punching his back, my mom is behind us in a nightgown.”

Obviously everyone was freaking out and screaming and the intruder and Mahilal were struggling when Kimberly Walsh called 911, frantically telling the operator “someone is in my house, I found someone in my house.” She told the police that Mahilal was trying to hold onto him so police could arrest him.

Let me say right now that trying to apprehend an intruder who is obviously trying to escape is a very dumb thing to do. People get killed this way. He would have been better off if he first placed the intruder’s shoes somewhere else so that when he escaped, he wouldn’t have his shoes.

Kimberly Walsh, watched some of the struggle while still in in her nightgown and later told police that Mahilal had hold of Johnson and was pushing him down the stairs. She heard Johnson say “don’t hurt me” but she didn’t see him leave the house. I don’t know if he was suffering from a knife wound when he said that or merely saw the knife in Mahilal’s hand.

Johnson said he tried to explain to Mahilal why he was there (however no explanation would be satisfactory) and then Mahilal slashed his hand with the knife. He said that he ran down the stairs with Mahilal behind him and then he tried to put on his shoes and it was then that Mahilal stabbed him in his chest or his leg (he didn’t remember which) and then he was stabbed again while he was escaping out of the yard, bleeding profusely from his wounds.

If this is what really happened, then the police were quite right to later arrest Mahilal and charge him with aggravated assault.

In the Canadian Criminal Code, Section 268 (1) states that every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. The punishment can be as high as 14 years in prison.

Unless Mahilal can prove that he didn’t stab Johnson in this manner, he will be convicted. He won’t however get 14 years in prison because there were mitigating circumstances in his favour.

A preliminary hearing was set for Sept. 11^th 2012. The purpose of a preliminary hearing is to determine if there are enough grounds to have a full blown trial.

This case highlights the much-debated subject of how much force is too much when a stranger breaks into your house and tries to steal your property.

In light of Johnson’s guilty plea, Mahilal’s lawyer, Daniel Brown, said that he was mystified as to why the Crown (prosecution) is proceeding with its case. He said,

“We give people like this medals, not criminal records. The intruder may have been armed or may have been violent or had accomplices. My client acted appropriately, under the circumstances.” unquote

In a brief statement to police the next morning, Mahilal insisted he was acting in self-defence and protecting his loved ones.  He said, “I don’t think I should get charged at all because I was more endangered than he was. Me, my girlfriend and her mom were in danger; it doesn’t make sense. All I did was defend myself.”

I agree that arming himself with a knife was appropriate on Mahilal’s part since he didn’t know what kind of intruder was in the house or whether or not he was armed with a knife. But as I said earlier in this piece, he didn`t need to stab the intruder if all he was attempting to do was to escape from the house. The police were called and all he had to do was follow the intruder to determine where he was when the police were in the area responding to the call for help. This is what happens when ordinary citizens attempt to apprehend criminals when they are not trained on how to do it.

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.

It is called the Citizen’s Arrest and Self Defence Act which permits a person to use reasonable use of force, taking into account all the circumstances of each particular case.  However, a person is not entitled to use excessive force in a citizen’s arrest. An example of that is in the Zimmerman case in Florida where a private citizen shot a young man he was attempting to apprehend.

I will later report to you what the court decision was with respect to this Canadian case. And now, I will tell you of another case where a man attacked his father because he wanted to protect himself and his family.

Si (William) Cheng, aged 52 was definitely not a good man. His reign of terror began in mainland China, before he and his small family immigrated to Canada, and his abuse of them lasted more than 15 years until the marriage ended in 2002.

He once beat his wife so badly she was temporarily blinded. Another time he cut out the tongue of a live rabbit to show his wife and son what he was capable of. The abuse had encompassed beatings, sexual violence and unusual cruelty. Among many other things, the father had poured urine on his son, (Zou, Peter Fang) forced him to eat vomit and ripped the head off of his son’s pet bird.

Peter and his mom were beaten without reason, and the son was confined to a bedroom, forced to urinate in a bottle. Then the father poured his son’s urine on his son’s head. When the mother was being sexually assaulted, the young son tried to save her but Cheng choked him.

The family moved to Vancouver in 1997 where Peter was choked in his sleep. His father was charged but he moved himself and his family to Australia before the courts dealt with the latest violence. They returned to Toronto in 1998 where Peter was ordered to sleep on a board and urinate in a bowl on the floor at night.

Cheng was repeatedly charged, convicted, given minor sentences and intimidated his hostage family members to convince authorities that he had changed in his ways.

He hadn’t changed a bit. Cheng beat his wife so badly in 2002 that she sustained severe head and eye damage, including a retinal tear.  She developed post-traumatic stress disorder and was forced to leave her job as an English as a Second Language`` teacher with the Toronto District School Board.

Cheng also assaulted the maternal grandmother, (Dian Xun Xiong) fracturing her pelvis and vertebrae.

Nora Fang described an incident at midnight May 4, 2002, in which Cheng pulled his wife, then 42, and son, then 15, from their beds into the kitchen, where he declared himself master of the family and told his son not to call the maternal grandmother “Grandma” any more.

Nora wrote in a court document, “Our son trembled in fear. After Cheng went to bed, she wrote the following words on a piece of paper, “Canada is a democratic country; everybody here should have equal rights and respect each other. Then she stuck the paper to the kitchen wall.

The next day, Cheng found the two lines on the wall. He tore the paper and violently attacked his wife, Nora. She cried for help and their son tried to call the authorities. When Cheng noticed this, he dashed violently towards him. Nora tried to intervene, but Cheng beat her again. Her elderly mother, begged him to stop but Cheng pushed her down, breaking her shin bone.

Their son jumped out of the home’s second-story window, causing multiple fractures however, he managed to call the police. His mother, grandmother and he were all rushed to hospital. Nora separated from her husband and have been separated ever since that last attack.

In 2008, Ontario Superior Court Justice Victor Paisley granted Nora Fang exclusive possession of the $450,000 matrimonial home on Mintwood Drive in Toronto, but Cheng ignored the order. Paisley also ordered Cheng to pay $522 a month child and spousal support, retroactive to September 2005.

Cheng made no payment to the mother and had refused to vacate the home. As well, he refused to co-operate with the sale of the home.

This brutish man was sued again in family court and Ontario Superior Court Justice Eva Frank wrote in her August 12th 2010, order; “There is a long and devastating history of violence having been perpetrated by the father against the mother and the child of the marriage.” She ordered that he was to pay another half-million dollars to his estranged wife for the abuse he submitted her and her family to. Cheng now owed $30,400 in child and spousal support and $74,000 for rent for occupying the home. He also paid nothing towards the $500,000 awarded to his wife and his wife subsequently became destitute.

Even though the police and child-care authorities intervened and Cheng was convicted criminally several times, he was never jailed for long, and after fleeing their tormentor and relocating in Ottawa, his son and Nora remained in daily fear of this horrible man. After his son thought he glimpsed his father in Ottawa several time, (It may have been someone else) he and his mother became so certain they were going to be killed, they began wearing bulletproof vests and fire-resistant face hoods, even when they were home alone. At one point, his son wrote to Governor-General David Johnston and the Queen, pleading that his father be deported to China. Those requests came to naught.

The time had come when his son decided that he had to do something else to protect himself and his mother from his father. In his mind, the only way he could protect himself and his mother was to kill his father.

 He purchased a cross bow, a hammer and some aerosol spray and went back to Toronto to find his father. He learned that his father was now homeless but he hung around the Main Street library a great deal of the time.

 He entered the library and saw his father sitting at a computer. He approached him and shot a steel bolt from the crossbow into his father’s back which pierced his heart. As his father struggled to extract the steel bolt from his back, Mr. Fang squirted him in the face with the aerosol spray, and then crushed his skull with the hammer.  

 Peter was subsequently charged with first degree murder which is automatically punishable by a minimum of 25 years in prison. However, prior to the trial, the Crown (prosecutor) was willing to let Peter plead guilty to second degree murder in which he could apply for parole after serving a minimum of ten years in prison. Peter was convicted of second degree murder and sent to prison for life with the opportunity to apply for parole after serving the minimum of ten years.

Judge McMahon plainly believed Peter’s distress was genuine. He said, Mr. Fang’s “ongoing fear was at the root of what happened.”

I also believe that his fear was genuine but was he justified in killing his father? I don’t think so. His father really had no way of knowing where Peter and his mother lived in Ottawa. A man who is homeless can hardly go on a venture trying to find anyone in another city that has a metropolitan population of 1,236,324.  I think Peter’s anger at his father which was justifiable interfered with his thinking and for this reason he over-reacted with respect to his fear.

 In both of the two cases I have given you, I believe that both men over-reacted and what they did to the two men they attacked, was in my opinion, excessive.