A Yukon judge has reserved his decision regarding a Whitehorse man facing two counts of impaired driving causing bodily harm and two counts of having a blood concentration equal or over the legal limit causing bodily harm.

The Crown and the defence submitted their final arguments regarding Mark McClusky, the accused, to Judge Michael Cozens on Tuesday.

According to a court document, McClusky was involved in a mid-morning collision on Jan. 20, 2017 on Hamilton Boulevard.

His car collided with a vehicle driven by Naomi Blindheim.

Kimberly Johnnie, one of two passengers in McClusky‘s vehicle, reported several injuries, including some to her right leg, a cut lip and a deep laceration of her right buttock. Blindheim also suffered serious injuries.

Crown prosecutor Leo Lane said McClusky was found driving with a blood alcohol level of between 186 and 225 mg per cent.

He explained the court would have to determine if the impairment caused the collision, to convict McClusky.

For this, the court will have to test causation.

Lane said Cozens will have to determine if McClusky’s driving played a major role in the accident. He said there has to be a significant cause to the collision.

The Crown argued the defence cannot argue the accident was a result on a momentary lapse. Lane said it’s clearly a case of driver fault, even if impairment played no role.

To have reasonable doubt, he explained, in this case, there needs to be evidence that the accident itself was unavoidable.

Lane added it would need to be provable circumstances demonstrating that the accident was a result of circumstances outside of McClusky’s control.

He gave examples like hitting unexpected ice, an animal crossing the road or the vehicle suffering a tire blowout.

“There is not evidence of that in this case,” Lane said.

He feels the unforeseen circumstances are not possible because the lanes are separated by a ditch and the victims had nothing to do with the accident. He added there were typical winter conditions that day, with good visibility and no precipitation of any kind. There was little light, but it was not totally dark.

Lane said these listed conditions were observable based on photographs of the scene of the accident.

He added the collision took place on a section of road that has a slight and subtle curve. He said there was no evidence of nearby intersections, heavy traffic or cyclists.

Lane pointed that McClusky’s car showed no signs of mechanical defects. The tires were observed to be in good condition, inflated and with appropriate tread.

The Crown told Cozens that he would have to consider all of these facts. To have reasonable doubt, he added, the judge would have to conclude McClusky’s intoxication played no role in the accident.

Lane said there is no evidence to support that conclusion. He pointed out there was evidence from a toxicologist that indicated that anyone with McClusky’s blood alcohol levels would have trouble driving.

He explained the toxicologist said the impaired driver would have weaved around and over-corrected errors.

Other effects referenced were a slower reaction time, increased risk-taking and negative impacts on judgment.

Lane concluded by saying the expert told the court that a reading of 200 mg per cent would make a driver 80 times more likely to end up in an accident.

He argued that McClusky’s impairment was a contributing factor, and asked Cozens for a conviction.

Joni Ellerton, McClusky’s lawyer, said she believed the Crown was asking Cozens to draw inferences that her client caused the accident.

She argued this would be appropriate if there was evidence to support the inference.

She explained that there needs to be a demonstrable pattern in the offender’s driving for this to work. She added there needs to be more than just expert testimony to be in line with legal principles.

Ellerton argued there is no evidence before the court as to the cause of the collision nor an established pattern of her client’s driving. She added there is nothing to show he was speeding.

“There is nothing,” Ellerton said.

She conceded it’s possible that McClusky may have done something wrong, but there needs to be more than just a possibility to convict him.

She argued there is an alternative to the Crown’s version of events. She said it’s just as possible that McClusky hit a patch of ice and lost control of his vehicle, veered into the other lane and collided with the other vehicle.

She cautioned the court about speculating on what happened, describing this is dangerous.

In response, Lane told the court the question is not what is possible. He said all drivers must adjust their driving based on the conditions.

What needs to be shown, to support an acquittal, is that something unexpected happened during the operation of a motor vehicle, Lane added.

He argued that no such evidence was presented.

Cozens reserved his decision on the case.