The Supreme Court of Canada has overturned a British Columbia court ruling and restored two voyeurism convictions against a former Metro Vancouver minor hockey coach.
Randy Downes had coached minor hockey and children’s baseball in Burnaby and Coquitlam for 30 years when he was charged in 2016 after border agents found images on his phone as he returned to Canada from Washington state.
All the images involved youths who were clothed and none were deemed pornographic, but Downes was convicted of two counts of voyeurism in 2019 for separate events where surreptitious cellphone photos were taken of two youths in their underwear in hockey changing rooms.
He was 62-years old when he was handed a suspended sentence in 2020 and placed on six months of probation.
The B.C. Court of Appeal rejected the lower court ruling in a split decision last year, finding that a conviction of voyeurism requires the subject of the photo to be in a place where it “can reasonably be expected” nudity will occur at the time the photo is taken.
In the unanimous Supreme Court of Canada decision, Justice Mahmud Jamal says the Criminal Code section used to convict Downes does not include a “temporal component,” so the Crown did not need to prove the photos were taken in a place where nudity is reasonably expected at that time.
Downes violated a law that protects the sexual integrity of persons in specific places, writes Jamal.
“It does not require the person to be actually nude, exposing intimate parts of his or her body, or engaged in sexual activity; it suffices if they are in a place where a person may reasonably be expected to be in such a state, such as a changing room, toilet, shower stall, or bedroom,” he writes.
Observation or recording in such “safe places” violates trust, says Jamal, noting that the result can be “emotional and psychological harm, even if the person is not observed or recorded when nude.”
Lawyers for Downes also challenged the constitutionality of the voyeurism laws during the case in the B.C. Court of Appeal, but Jamal says questions about the law being “unconstitutionally overbroad” were not addressed by B.C.’s highest court.
The same questions were raised during the appeal to the Supreme Court of Canada, but Jamal declined to rule on them, writing that the issue “has not been properly raised in the courts below” and would “require the Court to address an important Charter issue in a factual vacuum.”