The interpretation of “hands-free use” of electronics while driving was the subject of a two-hour appeal hearing Thursday morning in Yukon Supreme Court.

The territorial government is appealing a January lower-court ruling that dismissed the charge a Marsh Lake man faced for using a cell phone while driving. Judge Donald Luther cited uncertainty in the Yukon’s legislation.

Government lawyer Karen Wenckebach argued Thursday that Luther either misinterpreted the Motor Vehicles Act or failed to interpret it at all.

The law states that the use of electronic devices while driving is prohibited unless they are “configured and equipped to allow hands-free use in a telephone function....”

Wenckebach called Luther’s judgment “somewhat unclear and a little bit contradictory.”

He interpreted “hands-free” literally, she said, when it should have been given its “ordinary meaning.”

Ian Pumphrey, 48, was given a $250 ticket last August when an RCMP officer spotted him talking on a cell phone wedged between his ear and shoulder as he drove in downtown Whitehorse.

Pumphrey admitted to doing this, but argued he wasn’t breaking the law because he was using the phone hands-free.

He said he pulled over to take a call, put the phone in speaker mode, placed it in the crook of his neck and continued driving.

Luther agreed this was hands-free use.

“There is nothing to preclude his having it on his shoulder in speakerphone format,” he wrote in his decision, though he noted: “This is not an ideal way to use your cell phone because of potential problems.”

The judge pointed to a “vacuum” the Yukon government left in the clarity of the legislation.

The government could have imposed regulations clarifying under what specific conditions cell phone use is allowed, as other jurisdictions have done.

“The Yukon Government, for whatever reason, has chosen not to bring in any regulations and leave the drivers in a state of uncertainty,” Luther wrote.

“My job is to interpret the laws in a sensible way, but it is not to fill in gaps that can easily be filled in by the Legislature or by the Cabinet.”

He dismissed the charge.

Wenckebach said the judge should have either provided an interpretation of what “hands-free” meant or decided he couldn’t interpret the law. He did both.

“He never actually says, ‘This is my interpretation of the legislation,’” she said.

“We have to look at the purpose of the legislation and how the legislation accomplishes the purpose” – that is, to reduce the number of accidents caused by drivers using cell phones.

The law makes a “wide prohibition” against this usage, Wenckebach argued.

The clause about hands-free use is an exception that doesn’t counteract the prohibition.

But Pumphrey argued the exception is broad.

“The intent of the legislature was to keep it broad and narrow it by introducing regulations,” he said.

He questioned why the government was spending time and money on an appeal rather than amending the legislation.

“It makes no sense,” Pumphrey said, visibly annoyed.

He discredited Ontario case law Wenckebach provided, which she said supports the definition of a “hands-free device” as something mounted to the vehicle, like Bluetooth.

That’s a different jurisdiction and a different law, Pumphrey countered. Ontario’s legislation has detailed regulations about this, unlike the Yukon.

He is seeking costs for the 60 hours he spent preparing for the appeal, at the hourly rate of $120 he charges in his business. (That would be $7,200.)

Wenckebach said if costs were awarded, $500 to $1,000 would be appropriate.

Justice Leigh Gower reserved his decision. It’s not known when it will be released.