The question of “hands-free” phone use could once again take centre stage in a Whitehorse courtroom.

The Yukon government filed an appeal Wednesday of Judge Donald Luther’s territorial court decision last month which found Ian Pumphrey not guilty of using an electronic device while driving.

The two-page appeal from the government argues Luther erred in his interpretation of the Motor Vehicle Act and Pumphrey’s acquittal.

It asks the Yukon Supreme Court to set the decision aside, convict Pumphrey and impose the “appropriate penalty.”

During the hearing on the case, the court heard on Aug. 28, 2014 that Pumphrey pulled his car over and stopped before answering his cell phone.

Before driving off, he put it in speaker mode and lodged it between his shoulder and head.

“There was no evidence of any driving irregularities or any difficulties that Mr. Pumphrey had with operating his motor vehicle at the time,” Luther’s 11-page decision notes.

Pumphrey was later pulled over and issued a ticket for using the device while driving.

Under Yukon legislation, “... if an electronic device is configured and equipped to allow hands-free use in a telephone function, a fully licensed driver who is operating a motor vehicle on a highway may, subject to any conditions or requirements imposed by regulation, use the electronic device in that manner.”

In his decision, Luther pointed out that Pumphrey pulled over, stopped his vehicle and took the call lawfully. He put it in speaker mode, on his shoulder before driving off.

“At that time, a cell phone that is in speaker mode could be considered a hands-free device,” Luther wrote.

“If it were at all times in a cell phone holder suitably attached to the dash so as not to interfere with visibility or use of vehicle equipment, we wouldn’t be here today.”

Luther ruled there was nothing in the Yukon Motor Vehicles Act to preclude Pumphrey from having the phone on his shoulder in speaker mode; though the judge also added his thought that using a cell phone in that way “flies in the face of what is intended by the law.”

He went on to note some provinces clearly outline specifics on how “hands-free” phone use can happen, such as having the device secured in or mounted to the vehicle so that it does not move.

“The Yukon government, for whatever reason, has chosen not to bring in any regulations and leave drivers with a state of uncertainty,” the judge wrote, adding it would be fairly easy for the territory to add in such regulations using those from other jurisdictions.

Pumphrey told the Star this morning the case is no longer about him, but leaves him having to defend an honourable judge who carefully reviewed the details of the case, the territory’s legislation and that of other jurisdictions.

“He offered a very simple solution,” Pumphrey said.

In suggesting the government make regulation changes to specify how hands-free mode can be used, Pumphrey pointed out, the judge went beyond what he needed to do.

The judge pointed out where the territory’s Motor Vehicles Act needed better details on what “hands-free” use entails and made suggestions as to how to go about making changes, he said.

Instead of simply changing its regulations, the government is choosing to spend thousands of dollars to collect on a $200 ticket and challenge the decision of an experienced judge who took a month to review the case and legislation around it, Pumphrey argued.

It’s a move Pumphrey called “fiscally irresponsible” on the government’s part.

“I don’t understand it,” he said.

For Pumphrey, it means he finds himself as an average citizen now having to defend a judge with years of experience and legal expertise.

“It’s not about me anymore,” he said.