Defence lawyers for Osoyoos man Rod Flavell has filed an application to dismiss his manslaughter charge based on what they say is lack of evidence.
On the second week of trial in Penticton Supreme Court, Favell’s defence filed to dismiss the case, saying Crown counsel could not prove the cause of death of Tina Seminara, 61, Flavell’s wife of 18 years.
“Injury is not causation. Causation can’t rest upon [Flavell’s] email to RCMP acknowledging his wife was dead and that he said ‘this happened all of a sudden.’
Defence doesn’t contest that Flavell had shown up at the Osoyoos detachment that night with blood on his shirt saying his wife was in bad shape. They also don’t contest that Flavell had said he had thrown a vase but meant to miss her during an argument that evening.
“The Crown has circumstantial evidence and will ask the court to make a decision based on conjecture,” said his defence.
Seminara was found unresponsive and in critical condition April 8, 2020 on her living room floor, with swelling on her face and neck.
She was rushed to Oliver hospital and later to Kelowna General Hospital with brain injuries where she died nine days later. Flavell was originally charged with aggravated assault, but the charge was upgraded to manslaughter after his wife died.
In defence arguments before the court, they focused on the possibility that Seminara had a seizure or a heart attack that night.
Earlier in the trial, a pathologist testified that an autopsy showed cause of death to be HIE – hypoxic-ischemic encephalopathy – or lack of oxygen to the brain causing organs to shut down.
This can be caused by blunt force trauma, but the pathologist testified he could not be certain that trauma caused HIE.
Defence argued, “He said he threw a vase but didn’t mean to hit Tina. His neighbour testified he never witnessed them fight, there is no history of assault and no motive.
“The only evidence the Crown can rely on is that they had a [quarrel] at best [that night.]”
On the night of the incident, Flavell arrived at the Osoyoos detachment with blood stains on his shirt, and asked if the police had gone to his residence yet because ‘his wife was in bad shape.’
In opening statements, Crown said the blood on the shirt was tested and found to contain both Flavell’s and Seminara’s blood.
Crown will respond to the dismissal application on Friday morning.
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