Yellowknife (Mar 10/03) - Defence lawyer James Joosse asked the court to dismiss the case against Supreme Steel Ltd. in territorial court last Friday.

Supreme Steel is charged with failing to take every reasonable precaution and measure to protect the safety of its workers.

Gerhard Bender and Greg Wheeler died after falling from a manlift while working for Supreme Steel at Diavik diamond mine on July 17, 2001.

On Friday, Joosse asked for a "motion of non-suit," which is a request to terminate the case because there isn't enough evidence to justify continuing.

This motion is made at the end of the Crown's case before the defence decides whether to call any evidence.

At this stage, the judge does not weigh evidence. Instead, he must decide if a judge or jury, properly instructed, could return a guilty verdict if they accepted Crown evidence.

Judge Brian Bruser rejected the motion, pointing to evidence that key safety switches were stuck or intermittently sticky.

The Crown alleges five of the manlift's seven safety limit switches showed some defect. When working properly, safety limit prevent the machine from being placed in an unstable angle.

The lives of operators depend on the safety limit switches, said Bruser, especially because there is nothing in this particular manlift telling them what angle they're working at.

He said a judge might decide that the fault switches might have been discovered if properly checked and the event might not have happened.

Bruser decided a properly instructed judge might find that Supreme Steel was "engaged in a risky form of Russian roulette" by allowing employees to operate the manlift.

After Bruser's decision, Joosse said he will need four days to defend the company.

Even though the motion failed, the judge's comments allow the defence to get a sense of what the judge thinks about the case.

A date for the rest of the trial will be set in territorial court next Tuesday.