Lawyers for an Osoyoos man accused of manslaughter have argued evidence presented so far at trial is not enough to prove their client intended to cause harm or that his actions led to the death of his wife, seeking a full dismissal of the charge.
Roderick Ashley Flavell, in his early 60s, is accused of hurting his wife enough to cause severe brain damage. Tina Seminara, 61, was found unresponsive in their Cypress Hills home on the evening of April 8 2020.
Flavell sent an email to RCMP that night 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 needs help." He later showed up at the police station with bloodstains on his clothing asking whether anyone had gone to check on his wife.
During five days of testimony last week, court heard the Crown's case.
Court heard testimony from police and EMTs who responded that night to the Cypress Hills home Flavell shared with Seminara. They testified to 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.
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.
On Thursday afternoon, lawyers for Flavell Zoe Zwanenburg and Donna Turko had their first chance to respond, filing a motion to dismiss the charges based on a lack of evidence to support the manslaughter claim. Canadian law defines manslaughter as a death that took place without intent to kill, but there may have been intent to harm.
They argued that the Crown did not provide proof of the causation behind her death, citing physician testimony from earlier in the trial that a massive seizure or heart attack "could" have caused HIE, and the fact that pathologist Jason Doyle said "The underlying cause of the HIE is undetermined."
They also emphasized that there was no reported history of violence in Flavell and Seminara's relationship, and that longtime friend and neighbour Roger Pires testified he had never witnessed physical fighting between them or known Flavell to be aggressive.
The defence presented several examples of case law supporting their argument. They argued that knowledge of injury — as evidenced by Flavell's text and email — does not equate to guilt.
"The evidence is not substantial to determine that if the applicant even assaulted the victim that that assault did indeed cause the death of Miss Seminara," Flavell's lawyer said.
"Miss Seminara could have died, as per the evidence of the experts, [from] bad luck, natural causes, heart arrhythmia, seizure."
Court will hear the presiding Justice's ruling on the motion Friday morning at 10 a.m.
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