A Coquitlam hockey and baseball coach who surreptitiously snapped dressing room photos of two boys who played on his team is guilty of voyeurism, according to a recent Supreme Court of Canada judgment.
Longtime coach and frequent volunteer Randy Downes was found guilty of voyeurism in 2019. However, B.C.’s Court of Appeal set aside that conviction and ordered a new trial on the basis the original judge: “failed to address conflicts in the evidence about whether nudity could reasonably be expected when the photos were taken.”
The original judgment was the correct judgment, according to Justice Mahmud Jamal, who wrote the decision for the unanimous Supreme Court of Canada decision.
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Downes took 38 photos of two boys between the ages 12 and 14 at dressing rooms in Coquitlam and Surrey. The boys were in the hockey dressing room wearing underwear while Downes used his iPhone to take photos. The coach, who also ran a sports photography business, emailed those photos to himself, downloading them onto a computer and copying them onto a USB stick.
Timeline
Downes was on his way back to Canada in March 2016 after a brief shopping trip in the United States when Canada Border Services Agency officers searched his devices.
Downes told the border guards the photos were from his sports photography business. However, after finding thousands of photos of children playing sports – including some in locker rooms – CBSA alerted RCMP that Downes “might have child pornography on his home computer,” according to the judgment.
Approximately one month later, RCMP officers searched Downes’ home and scoured his electronic devices, eventually finding 38 photos of the two boys in various states of undress.
Downes told the RCMP that he liked young boys but that it was “not a sexual thing,” according to the judgment.
Reasonable expectation
Legally, the four components of voyeurism include acting intentionally, surreptitiously, in circumstances that allow for a reasonable expectation of privacy, and in a place where a person might reasonably be expected to be nude.
While there was no dispute about whether Downes took the photos intentionally or surreptitiously, the court was faced with the question of whether those pictures were taken in a place “in which a person can reasonably be expected to be nude.”
Downes claimed that since none of the photos showed nudity, “there was no reasonable expectation at the time the photos were taken that anybody would be nude.”
However, the Supreme Court of Canada ruled that the dressing room was a safe place. Taking photos in that safe place violates the children’s privacy and their sexual integrity, even if nudity wouldn’t be reasonably expected, according to the judgment.
Any recording in a safe place violates trust and can result in a person’s: “humiliation, objectification, exploitation, shame, or loss of self esteem, and can cause emotional and psychological harm, even if the person is not observed or recorded when nude,” the judgment concluded.
