Rod Flavell

Roderick Flavell is flanked by his lawyers Zoe Zwanenburg (left) and Donna Turko while leaving the Penticton courthouse on the first day of his manslaughter trial.

Not one shred of evidence has been presented by the Crown that proves Rod Flavell killed his wife, a defence lawyer told a judge Wednesday in an effort to have the case tossed.

Flavell, 64, is standing trial in B.C. Supreme Court in Penticton on a single count of manslaughter that alleges he killed his wife, Tina Seminara, at their home in Osoyoos on April 8, 2020.

Seminara was found by police unconscious on her living room floor and taken to hospital. She was declared dead nine days later when she was taken off life support.

The trial began last week with the Crown calling its witnesses, including police officers, doctors, and friends and neighbours of the couple.

When the trial resumed Thursday, defence counsel Donna Turko presented a no-evidence application seeking to have the judge acquit her client.

The test, she said, is whether or not a reasonably instructed jury – even though it’s a judge-alone trial – could find Flavell guilty based on the Crown’s evidence. Doing so in Flavell’s case “would require speculation that is not permissible in law,” argued Turko.

“The court would need to speculate (Flavell) committed the unlawful act and that he knew it would cause bodily harm to the victim. The court would also need to speculate what the unlawful act was and how the unlawful act caused the death of the victim,” said Turko.

In her submissions, Turko rehashed the evidence of the Crown witnesses, none of whom was able to pinpoint the precise cause of Seminara’s death, other than a brain injury due to lack of oxygen.

There were no signs of blunt-force trauma or defensive wounds on Seminara’s body, continued the lawyer, and none of the experts could rule out Seminara suffering a heart attack, stroke or even “bad luck.”

As for odd messages Flavell sent on the night in question to a neighbour and the RCMP alluding to a death and Seminara requiring medical attention, Turko suggested a manslaughter conviction “can not rest upon the mere knowledge that the victim needed help.”

Furthermore, “There’s no history of assault and no propensity (to violence) in this case – and no motive, as well,” concluded Turko, who nonetheless noted the circumstances surrounding Seminara’s death are “very suspicious.”

The Crown is due Thursday morning to present its response to the no-evidence application.

The first Crown witnesses last week were two Osoyoos RCMP officers who testified about their interactions with Flavell, who showed up at the detachment around 11 p.m. on the night in question with apparent self-inflicted cuts on his wrists, along with two knives and a length of rope on the passenger seat of his vehicle. The officers testified Flavell admitted to having a “row” with Seminara and asked if they’d been to his home, because Seminara was in “bad shape.”

More puzzling testimony came from Patricia Zeleny, a long-time friend and neighbour to both Flavell and Seminara, who told the court she visited the couple’s home on April 9, 2020, to pick up Seminara’s dog.