A former hockey coach who was found guilty of voyeurism for taking surreptitious photos of two boys in dressing rooms has had his conviction overturned and a new trial ordered.
In June 2019, B.C. Supreme Court Justice Heather MacNaughton found Randy William Downes guilty of voyeurism offences that occurred in 2013 and 2015. He was given a suspended sentence and six months probation.
The trial heard that RCMP launched an investigation after the Canada Border Services Agency searched some of Downes’ electronic devices upon his return to Canada from the U.S. After executing a search warrant, RCMP found 38 photos of the boys on devices belonging to Downes and seized at his home.
Downes, 62 at the time of sentencing, had been a coach for many years. He took photos of one of the boys in dressing rooms in hockey arenas in Surrey and Coquitlam over two days in June 2013 while the boy was between 13 and 14 and playing in a summer hockey league.
He took photos of the other boy, who was 12 at the time, in sports facilities in Coquitlam, New Westminster and Surrey over a two-week period in August 2015.
Some of the photos showed the boys in their underwear, but none of them showed the boys naked and none were deemed pornographic. After Downes was arrested in October 2016, he was charged with four counts of voyeurism, one count of possessing child pornography, and four counts of making or publishing child pornography.
The child porn charges were thrown out after a preliminary hearing and only two of the voyeurism charges proceeded to trial.
Downes raised a number of grounds of appeal and in a split decision, the B.C. Court of Appeal agreed with his argument that the judge erred in failing to address conflicting evidence as to whether the subjects of the photos were taken in a place in which a person could reasonably be expected to be nude.
Some evidence had been heard at trial that some boys of the age in question were uncomfortable showering in dressing rooms where older boys and adults frequently showered.
Writing for the majority, Justice Peter Willcock noted that the conviction hinged upon the trial judge’s conclusion that the elements of the offence are established if a surreptitious photo is taken in a private setting where a person could be reasonably expected to be nude at some time, even when no nudity is expected at the time the photo was taken.
While the appellant’s conduct was undoubtedly a breach of trust and invasive of privacy, that doesn’t necessarily make it conduct that the law criminalizes as a sexual offence, he said.
