To be, or not to be, hands free

A Yukon driver had his ticket for driving while using a cell phone thrown out this week, thanks to what the judge called a "vacuum" in the Yukon's regulations.

A Yukon driver had his ticket for driving while using a cell phone thrown out this week, thanks to what the judge called a “vacuum” in the Yukon’s regulations.

Ian Pumphrey was driving in Whitehorse in August when he got a call, pulled over, put his phone on speakerphone, wedged it between his ear and shoulder and then began driving again, according to territorial judge Donald Luther.

An RCMP officer saw him driving and gave him the ticket.

The Yukon government says it’s reviewing the decision.

The issue is what regulations the Yukon has – or more accurately doesn’t have – when it comes to hands-free driving.

The Yukon Motor Vehicle Act says you can’t use a cell phone or electronic device while driving except “if an electronic device is configured and equipped to allow hands-free use in a telephone function.”

That same section goes on to say – and this is key according to the judge – the rule is “subject to any conditions or requirements imposed by regulation.”

Luther said he went looking for Yukon regulations related to hands-free driving and couldn’t find any.

In Ontario regulations specifically say the hands-free phone needs to be “placed securely in or mounted to the motor vehicle so that it does not move while the vehicle is in motion,” the judge said. “And the driver can see it at a quick glance and easily reach it without adjusting his or her position.”

Similar regulations exist in B.C.

“Again, the motor vehicle drivers in the province of B.C., just like in Ontario, have guidance from their governments as to what is allowed and what is not allowed,” Luther said.

The judge is quick to point out he doesn’t think this case reflects the intent of the law in the Yukon. It’s his job as a judge “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 said.

Luther advised cabinet “to clarify this situation” in due course.

Cabinet spokesperson Elaine Schiman said, in an email, “the minister of justice and the Yukon government are concerned about the potential public safety implications of this decision. Currently, the Department of Justice is reviewing the ruling, to assist the government in determining how to respond to this judgment of the court.”

She did not respond to questions about who was involved in writing the Yukon law – which came into force in 2011 – or whether laws in other jurisdictions were reviewed.

It doesn’t look like it would be difficult to make changes, since that relevant part of the Motor Vehicle Act already references regulations.

If it were a matter of changing the law, that would have to be done while the legislature was in session. But regulation changes can be done by an order in council. That means cabinet recommends changes to the commissioner, who signs off on them.

Luther discouraged any Yukoner from using this case as an excuse to flout the law “because of the vacuum that the Yukon government has left.”

Pumphrey’s case was a unique one, he said. If he hadn’t pulled over to pick up the phone, he would be guilty. If he had been driving erratically he may also have been found guilty, the judge said.

Meanwhile, RCMP Cpl. Shawn Pollard, who runs traffic services in the Yukon, says the decision doesn’t change the way his team will do its job.

If he were in the situation tomorrow, Pollard said he would write the ticket and go back to court.

The intent in outlawing driving while on the phone had to do with preventing distracted driving, he said.

“I think it is a very dangerous practice.”

One lighter moment at Pumphrey’s hearing this week occurred when his cell phone rang in court.

“You’re not driving, so you can turn it off,” the judge said.

Contact Ashley Joannou at