Photo: Casey Richardson

Roderick Flavell leaving Penticton court in April 2022.

The manslaughter trial of Roderick Flavell will continue after a failed attempt by his legal team to dismiss the charges due to lack of evidence.

Flavell, in his early 60s, has been in BC Supreme Court in Penticton for two weeks as Crown prosecutors laid out their case — that Flavell had assaulted his wife, Tina Seminara, 61, at their Osoyoos home in 2020 to the point where her brain injuries resulted in eventual death.

Evidence on the record includes that Flavell sent an email to RCMP on April 8, 2020 with a subject line "Death" and stating "This happened all of the sudden," as well as a text message to his neighbour and friend reading "Sorry to lay this on you buddy, call 911. Tina breathing, but may need help." He later showed up at the police station with bloodstains on his clothing asking whether anyone had gone to check on his wife.

Testimony from police and EMTs who responded that night to the couple's Cypress Hills home described broken glass, upturned furniture, dark stains on the carpet and sectional couch, and swelling on Seminara's face as well as a severe leg injury. She later died in hospital.

Doctors who treated her that night and in the days that followed testified to symptoms of brain damage.

An autopsy report ruled her death a result of "hypoxic-ischemic encephalopathy (HIE)," which in layman's terms means decreased oxygen, decreased blood supply and death of nerve cells in the brain leading to the shutdown of the body's organs. That can be caused by trauma, among other things.

Flavell's defence team seized on the fact that the autopsy doctor could not definitively say her death was caused by blunt-force trauma, which is the Crown's allegation.

They asked Justice David Crossin to dismiss the case entirely. arguing there was no proof any actions by Flavell caused Seminara's death. Other scenarios, they argued, could include a massive seizure.

But while much of the Crown's evidence is circumstantial, including testimony from a close friend who said Flavell told her Seminara's death was "not an accident," and a lack of definitive proof of the underlying cause of Seminara's brain damage, Crossin dismissed the defence's motion.

"Frankly, I found this application a close call," Crossin said Friday afternoon.

"But there is, as the jurisprudence characterizes it, a scintilla of evidence that in the context of the whole of the evidence, is reasonably capable of supporting the inferences sought by the Crown."

Crossin's decision means trial will move forward into its third week. Monday will see the defence team begin to present their arguments.