Nanaimo brothers must stand trial again

Brothers charged with manslaughter following a 2006 bar fight will stand trial a second time following a decision last week.

Two Nanaimo brothers who were charged with manslaughter following a 2006 bar fight will stand trial a second time following a decision last week by Canada’s highest court.

Timothy and Matthew Maybin, as well as Buddha Gains, who worked as a bouncer in the now-closed Grizzly Bar, were found not guilty in 2008 of manslaughter in the death of Michael Brophy, 20.

The Crown appealed the acquittals and in 2010, a 2-1 B.C. Court of Appeal decision ordered a new trial for the Maybin brothers, but upheld the decision to acquit Gains.

The brothers appealed that decision to the Supreme Court of Canada. The appeal was dismissed Friday.

Brophy died Oct. 21, 2006 from internal bleeding in the brain following a fight that broke out in the nightclub just hours before.

Before the fight, Brophy was standing near a pool table. The Maybin brothers allegedly confronted Brophy over moving pool balls on the table and then Timothy, with Matthew assisting, punched Brophy in the head.

Brophy fell face down on the pool table and Gains, observing the commotion, made his way over to the area and punched Brophy once in the head while he was lying on the table.

The trial judge acquitted all three men because while he was satisfied that all three accused participated in an assault against Brophy, and that both Timothy and Gains caused bodily harm to Brophy and knew their actions would have done so, it was not proven who struck the fatal blow.

The judge found there were three possible causes of death: the punches delivered by Timothy, the blow struck by Gains or a combination of the two.

The appeal court concluded the trial judge erred in focusing upon the medical cause of death.

Two of three appeal court justices concluded that it was reasonably foreseeable that the brothers’ assault would provoke the intervention of others with resulting non-trivial harm, while the third justice concluded that the assault of the bouncer was not reasonably foreseeable and that it interrupted the chain of legal causation.

In the unanimous decision released Friday, Justice Andromache Karakatsanis wrote it was reasonably foreseeable the fight would escalate and other patrons would join in or seek to end the fight, or that bouncers would use force.

“The Maybin brothers’ assault was either the direct medical cause of death or it rendered the victim vulnerable to the bouncer’s assault,” wrote Karakatsanis.

“The trial judge could have concluded that the bouncer’s assault did not necessarily constitute an intervening act that severed the link between the accused’s conduct and the victim’s death, such that it would absolve them of moral and legal responsibility. The trial judge could have found that the appellants’ actions remained a significant contributing cause of the death.”

Crown spokesman Neil MacKenzie said the matter now returns to B.C. Supreme Court to arrange a date for a new trial.