Supreme Court restores conviction of B.C. hockey coach who took changeroom photos of young players

In a landmark ruling on voyeurism issued Friday, the Supreme Court of Canada has restored the conviction of a British Columbia sports coach who took pictures of his players in a hockey dressing room.

In restoring the conviction, the court ruled that change rooms are safe spaces and taking photographs of children in that setting not only violates their "privacy but also their sexual integrity."

At the centre of the case is Randy William Downes, who coached hockey and baseball in B.C.'s Lower Mainland. He also ran a sports photography business.

A B.C. court convicted Downes in 2019 on two counts of voyeurism after he was found to have taken 38 photos of two adolescent hockey players he coached, aged 12 and 14, in a changing room.

The boys were in various states of undress in the photographs but were not nude. The trial judge found that the boys had a reasonable expectation of privacy in the changing room, which Downes violated.

Section 162(1)(a) of the Criminal Code says a person may be convicted of voyeurism if the person photographed or recorded "is in a place in which a person can reasonably be expected to be nude."

B.C.'s Court of Appeal overturned Downes's conviction in 2022 and ordered a new trial. Justice Peter Willcock wrote in the majority decision that the prior judgment did not consider whether the photos were taken at a time when nudity could reasonably be expected in the dressing room.

In his reasons for judgment, Willcock wrote that there's a shortage of case law to cite on s.162(1)(a). The question before the Supreme Court was whether s.162(1)(a) considers the timing of photos or recordings to be relevant.

Russell Brown does not participate in ruling

The court ruled unanimously that it's not relevant. It set aside the Court of Appeal decision and restored Downes' convictions.

"In effect, s. 162(1)(a) designates places such as bedrooms, bathrooms and dressing rooms as 'safe places' where people should be free from intrusions onto their privacy and sexual integrity," Justice Mahmud Jamal, writing on behalf of the court, said in the judgment.

"Taking surreptitious photographs of children in their underwear in an inherently 'safe place' like a hockey dressing room violates not only the children's privacy but also their sexual integrity, even if nudity was not reasonably expected when the photos were taken."

Jamal added that if Parliament had wanted timing to be relevant, it could have added that language in s.162(1)(a).

The judgment notes that Justice Russell Brown didn't participate in the final disposition.

The Canadian Judicial Council said earlier this week that it is "reviewing a complaint" regarding Brown's conduct. He has been on leave from the court since Feb. 1 because of the complaint.

The Vancouver Sun reported Thursday that the complaint concerns Brown's conduct at an Arizona resort where he was a guest speaker. Brown told the paper in a statement that he would release a statement on the matter "soon."