An application for a mistrial in the case of a Chilliwack man convicted of manslaughter was denied by a B.C. Supreme Court Justice Monday.

Last May, a jury found Michael Brisson, 21, not guilty of second-degree murder, but convicted him on a lesser charge manslaughter in the stabbing death of 36-year-old Drew Wagar during a fight at the Stormwynn Trailer Park on April 17, 2007.

He was also convicted of assaulting Bonnie Schaeffer just before the fight with Wagar, who had attacked Brisson with a baseball bat.

Defense lawyer James Hogan argued Monday that two jurors had found Brisson not guilty of murder on grounds of self-defense, but due to Justice Brian Joyce’s instructions found him guilty of manslaughter.

Hogan called for a mistrial for that reason, but Joyce said the argument that his instructions precluded individual jurors from further deliberations once they had reached a conclusion was “not correct in law” and denied the application.

He said the self-defense argument does not apply to manslaughter cases, so he could not consider it in his findings of fact that will be used in sentencing.

“I can’t make any findings of fact that are inconsistent with the verdict,” he said.

Bryce’s denial of the mistrial application may be appealed to a higher court.

The 10-2 split in the jury on the murder charge came to light during the trial when two of the jurors raised the self-defense question.

But whether the remaining 10 jurors voted to convict Brisson of manslaughter because the Crown had failed to prove intent to murder or because of his inability form the intent due to impairment by drugs and alcohol is still open to the justice to decide.

Crown counsel Grant Lindsey suggested the jury had rejected Brisson’s self-defense argument because he “went too far” in his reaction to Wagar’s attack with a baseball bat.

“It’s clear from the evidence that he overpowered and dominated Mr. Wagar,” he said, yet stabbed him more than a dozen times.

The lack of intent to kill because of the drugs and alcohol he consumed that night was also not supported by the evidence, Lindsey suggested.

But Hogan suggested that Brisson, who was then 19 years old, found himself in an unfamiliar situation surrounded by unfamiliar people and had no way to determine how much was enough during the fight.

“This this was an explosion,” he said. “He fought himself out of a situation and took off” as soon as he felt it was safe to do so.

Hogan also suggested that while the judge may not consider self-defense in his findings of fact, he could use “common sense” in light of the circumstances, and Brisson’s character as a 19-year-old living at home with his parents with no previous criminal record.

“(Brisson) had moments in which to react, and he reacted in the fashion he did,” Hogan said.

During the trial, Brisson told the court he was driving home after drinking with a friend and picked up a woman who offered him sex for money.

He said he drove the woman to the trailer park, where he bought cocaine and believes he used crack cocaine for the first time.

He left the trailer park after money was stolen from his truck, but had returned determined to get his money back when the confrontation with Wagar occurred.

The Stormwynn, notorious as a haven for drug users, has since been demolished.

Joyce will deliver his findings of fact later this week, and then the lawyers will make their submissions on sentencing.

rfreeman@theprogress.com