A Yukon Supreme Court judge has ruled that hands-free cell phone use means a driver may not hold the device in any way.

Justice Leigh Gower overturned a lower court’s decision, finding Ian Pumphrey guilty of using his cell phone while driving.

Pumphrey had the device in speakerphone mode, and it was wedged between his shoulder and his ear.

“In my view, the correct interpretation of ‘hands-free use’ is more broad than simply use without hands, and contemplates that a device can be used only when it is not being held by the operator in any fashion,” Gower wrote.

“In my respectful view, this interpretation is more consistent with the purpose of the legislation.”

The territory’s Motor Vehicles Act permits the use of electronic devices while driving only if they are “configured and equipped to allow hands-free use in a telephone function....”

Pumphrey was pulled over last August after a police officer saw him driving on a downtown Whitehorse street with a cell phone between his ear and shoulder.

Pumphrey said he’d pulled over to take the call, placed it in the crook of his neck and continued driving.

After a trial last December, a judge acquitted him, citing uncertainty in the law.

The Yukon doesn’t have regulations that define “hands-free use” as some jurisdictions do.

Pumphrey was literally using the phone hands-free, Judge Donald Luther said.

The Yukon government appealed. At the appeal hearing last month, lawyer Karen Wenckebach argued this literal interpretation of the law was incorrect.

Gower agreed.

“In this regard, I accept the reasoning in (Ontario case law) that ‘hands-free’ does not simply mean ‘without hands,’” he wrote. “Rather, I view ‘hands-free use’ as use without being held by the operator in any fashion.”

Pumphrey was self-represented at the appeal. He argued the trial judge interpreted the law correctly, and that the government should introduce regulations to add clarity.

“The government forced the judge to interpret the legislation instead of practising good governance and putting in sensible regulations like the rest of the country,” Pumphrey said in a statement today.

“The only way to fix this now is to put in regulations, which should have been done in the first place.”

Gower decided that rather than impose the $287 fine and surcharge for the offence, he would suspend Pumphrey’s sentence and give him one day of probation.

He said although he wished to give the man an absolute discharge – which is the lowest possible sentence – he was unable to do so under the legislation.

“As a self-represented litigant and layperson, it is not surprising that some of Mr. Pumphrey’s arguments were misguided,” Gower wrote.

“However, many were not, and he made a genuine good faith effort to defend himself both at the trial and as the respondent on this appeal.”

The Crown does not have to pay costs to Pumphrey for the time he spent working on his case for the appeal, the judge determined.