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Six years after death in case of Nanaimo bar fight, family seeking resolution

May 24 2012

Nearly six years after his death, the family of Michael Brophy is finding solace where they can.

Most recently, that comes in the form of a Supreme Court of Canada decision rejecting the leave to appeal brought forward by the two men who were accused, then acquitted, of killing the 20-year-old Gabriola Islander in a 2006 Nanaimo bar fight.

The high court's decision, announced last week, means the B.C. Court of Appeal's ruling overturning their acquittal stands and brothers Timothy and Matthew Maybin will be retried, leaving the Brophy family cautiously optimistic about the future.

No date has been set for the second trial.

"I guess I'm slightly excited because I know the odds," Avryl Brophy, Michael's older sister and the woman who speaks for his family, said Tuesday from White Rock.

"When you've been acquitted and then are brought back to trial, you're probably going to be found guilty.

"So that sounds great to me."

The Oct. 21, 2006, altercation at the now-closed Grizzly B'ar in Nanaimo and Brophy's death in hospital later that day set off a series of lengthy court procedures.

In a 2008 B.C. Supreme Court decision, the brothers and bouncer Buddha Sadu Gains were acquitted of manslaughter.

That decision was appealed to the B.C. Court of Appeal, which, while upholding the Gains acquittal, found errors in the trial judge's analysis of evidence and overturned the Maybins' verdict.

The events left the Brophy family jaded.

Avryl says the initial trial and its charged atmosphere left her "not too fond of the justice system" and wore out her mother, Helen Brophy.

"My mom will not be going to any trial. She doesn't want to see or deal with this any longer other than in her own heart and in her own family and with God," her daughter said.

Avryl will go to the trial because she feels its her duty, but hopes it's not in "small-town" Nanaimo. "I don't think it should have ever been held in Nanaimo," she said.

"I think if it wasn't held in Nanaimo, the result would have been different."

B.C. Supreme Court Justice Doug Halfyard, in issuing a notguilty verdict for the three, said it wasn't proved beyond a reasonable doubt that either Timothy Maybin or Gains had struck the blow that was the sole cause of Brophy's death and so none of the three could be found guilty of manslaughter.

The unanimous Supreme Court decision, however, put forth by Justice Andromache Karakatsanis, weighed whether the actions of the Maybins and the actions of Gains could be seen as one act for which the brothers could be held responsible.

The judges ruled "it was open to the trial judge to conclude that it was reasonably foreseeable that the fight would escalate and other patrons would join or seek to end the fight or that the bouncers would use force to gain control of the situation."

Avryl said that while the pro-cess has taken years, and isn't what the family finds ideal, it's the best they can ask for.

"I do see a positive outcome for us coming because I don't think the court would waste all their time," she said. "I'm semi-pleased. "And I think Michael is, too, because Michael believed in justice . . . Michael was a super-good person."

Peter Firestone of the Victoria law firm Firestone and Tyhurst, legal representatives for the Maybins to the Supreme Court of Canada, declined to comment on the case or even say whether he was still representing the brothers.

Calls to the home of the Maybins' father were not returned.

This is the second time in less than four months that a Nanaimo violent crime case was before the nation's highest court.

Convicted murderer Kelvin Kingsbury Purdy's leave to appeal was dismissed by the Supreme Court in February.

MGauk@nanaimodailynews.com 250-729-4229

BROPHY-MAYBINS CASE TIMELINE

Oct. 21, 2006

2: 10 a.m.: Police are called to Nanaimo's Grizzly B'ar

Oct. 21: Michael Brophy, 20, dies at Victoria General Hospital

Oct. 22: Timothy and Matthew Maybin turn themselves in

Oct. 23: Maybins charged and in their first court appearance are freed on bail

Oct. 27: Grizzly B'ar bouncer Buddha Sadu Gains is also arrested and charged with manslaughter

Oct. 30: It is announced that the Grizzly B'ar will close permanently

June 16, 2008: Defence opts instead for trial by judge alone in B.C. Supreme Court

June 18: The Crown prosecutor opens his case, court hears witness testimony that as many as 13 punches were thrown at Brophy

July 15: Gains testifies, saying Brophy was identified as the fight's instigator and that he hit him to take control of the situation

Sept. 2: Final arguments begin and come to a close the following day

Sept. 26: Justice Doug Halfyard returns a verdict of not guilty for all three accused

Oct. 28: Criminal Justice Branch says it will appeal the acquittals

April 14, 2009: Prosecutors argue to the B.C. Court of Appeal that errors of law were made in the manslaughter decision

Nov. 25, 2010: In a split decision, the B.C. Court of Appeal finds the presiding judge erred in his legal analysis of evidence and orders a new trial for the Maybins, but not for Gains

Dec. 15, 2011: The Supreme Court of Canada hears one-hour arguments from Maybins's lawyers and from prosecutors

May 18, 2012: The Supreme Court dismisses the Maybins' appeal, resulting in a new trial

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