Appeal judge convicts Yukon man in hands-free cellphone case

A Yukon appeal judge has convicted a man of using a cellphone while driving, overturning an initial ruling that because it was wedged between his shoulder and his ear it met the definition of a hands-free electronic device.

Ian Pumphrey convicted of using a cellphone while driving

Ian Pumphrey of Whitehorse was ticketed in August 2014 for talking on his cellphone while driving. Yukon Supreme Court Justice Leigh Gower has convicted him on the charge, overturning an initial ruling that because it was wedged between his shoulder and his ear it met the definition of a hands-free electronic device. (Cheryl Kawaja)

A Yukon appeal judge has convicted a man of using a cellphone while driving, overturning an initial ruling that because it was wedged between his shoulder and his ear it met the definition of a hands-free electronic device.

Territorial court Judge Don Luther decided in January that Ian Pumphrey did not violate Yukon's laws governing the use of electronic devices while driving because Pumphrey's cellphone was wedged between his shoulder and his ear, on speaker phone, and there was nothing in the legislation defining the term "hands-free."

He said that while the intent of the law was clear, it was not up to the courts to fill in gaps that could easily be filled by government regulations.

The Crown appealed that ruling.

In his decision, Yukon Supreme Court Justice Leigh Gower ruled that interpreting the law is one of the court's duties and the trial judge had made an error when he refused to do so.

He then ruled that, in his interpretation, hands-free means "use without being held by the operator in any fashion" and found Pumphrey guilty of the offence.

In his decision, he wrote he wanted to grant Pumphrey an absolute discharge, given the time he had spent in court and preparing his own arguments as he had represented himself, but did not have the jurisdiction.

Instead he imposed a suspended sentence and one day of probation. 

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