01/14/2015 09:45 EST | Updated 03/16/2015 05:59 EDT

Yukon judge rules phone wedged between ear and shoulder is 'hands-free'

A Marsh Lake, Yukon, man has found a legal loophole that could make enforcing the territory's ban on driving while using a cellphone more difficult.

Yukon Judge Don Luther says it was not illegal for Ian Pumphrey to be driving with his phone lodged between his shoulder and his ear. 

Luther says it may have been an oversight on the territorial government's part when it passed the law governing the use of electronic devices while driving.

He says the Yukon cabinet would be well advised to clarify the law through regulations.

The judge says Ian Pumphrey was given the ticket by an RCMP officer on Aug. 28 when he was observed to be driving with his phone on his shoulder.

He says Pumphrey had received a phone call several minutes earlier, pulled over, put his phone on speaker, wedged it between his shoulder and ear, and then continued driving. The judge says there was no indication it led to Pumphrey driving in a distracted manner.

Luther notes the legislation that allows hands-free cellphone use while driving does not put any restrictions on what hands-free means. He says while the intent of the law is clear, it's not up to the courts to fill in gaps that could easily be filled by government regulations.

Luther says other jurisdictions, including B.C. and Ontario, had the foresight to specify exactly what hands-free use means.

Pumphrey says he challenged the ticket because he believed at the time, and still does, that he had not broken the law.

"It's unfortunate, I try to be a law-abiding citizen, and you know the way the law reads you may use a cellular device in hands-free mode, and I mean I was clearly doing that when the officer pulled me over."

He says he doesn't want people to take this decision and start driving in a dangerous manner.

That's also the sentiment of Luther, who says citizens should not use this as an excuse to flout the law.