A children’s hockey coach who was ostracized as a sex offender, deprived of work, beaten up in jail and placed in protective custody asked the Supreme Court of Canada on Thursday to consider whether taking secret photos in a dressing room always amounts to the sex crime of voyeurism.
The Criminal Code’s section on voyeurism allows for a conviction even where the offender is not alleged to have had a sexual purpose and no one was naked or having sex. The key in such cases is whether nudity can be expected in the place where the secret recording occurred.
The 38 photos taken by B.C. coach Randy Downes of two boys, approximately 12 and 14, involved little or no nudity. Some featured bare torsos, and in two blurred photographs, taken from inches away, the boys were in their underwear.
“The place is not a constant,” Donald Sorochan, a lawyer for Mr. Downes, told the Supreme Court. “It’s not a toilet. It’s not a shower. It’s a dressing room.”
Teenagers may be expected to shower, but children may show up in full hockey gear.
A judge convicted Mr. Downes of voyeurism in 2019, saying nudity is to be reasonably expected in dressing rooms. But the British Columbia Court of Appeal ordered a new trial this year, by a count of 2-1, saying the judge had not given enough consideration to whether nudity was to be expected at the time Mr. Downes took the photos. The two boys testified at trial they did not shower or change their underwear after a game.
Justice Sheilah Martin, an author and lecturer on sexual-assault law, asked Micah Rankin, a lawyer for the B.C. attorney-general, whether someone who photographs children holding medals would be guilty of voyeurism if one child did not consent to the photograph.
Mr. Rankin replied that if the photos were taken surreptitiously, the photographer would be committing the sex crime of voyeurism.
Justice Russell Brown asked whether the voyeurism law protects privacy where the sexual integrity of the protected individuals is not at stake. Mr. Rankin agreed that it does.
Mr. Sorochan said the key was that nudity was not expected in the dressing room at the time Mr. Downes took the photos, and Parliament could not have intended to criminalize conduct that did not have a sexual aspect.
“Why would Parliament want to have people who … did not do anything of a sexual nature found to have committed a sexual offence?” he asked the court.
He pointed to the consequences of a sexual-offence conviction: While Mr. Downes, who was about 60, was in custody awaiting trial, TV cameras had come to his home and filmed his 80-year-old mother. When he was out on bail and eating at a McDonald’s, three police cars showed up because the restaurant had a children’s play area. Work he had as a hockey referee and a baseball umpire dried up, leaving him to collect bottles and walk his mother’s dog for payment, B.C. Supreme Court Justice Heather MacNaughton said when she sentenced him. He received six months probation, on top of the nearly seven months he had spent in custody while awaiting trial.
The RCMP held a news conference to announce the charges, which initially included five counts of child pornography; a judge at a preliminary hearing found nothing pornographic in the photos and threw out those charges.
“This man has been branded a sex offender” by the RCMP, Mr. Sorochan told the Supreme Court. “And the general public is still treating him as a sex offender. … If it doesn’t have something sexual why is it in the sexual offences section? Why does it have a five-year maximum penalty?”
University of Ottawa law professor Jane Bailey, a lawyer for the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, which intervened in the case, said that protection against voyeurism is a gender-equality issue. Justice Malcolm Rowe balked, saying equality is not a catch-all for every issue.
“Equality seems to have become like the Oracle at Delphi: When you have a difficult problem for which there is no answer you pose the question to the Oracle, and Section 15 [the equality section of the Charter of Rights and Freedoms] yields the answer,” he said. (The oracle was a mythical being of ancient Greece with all the answers.)
Justice Rowe said he has expressed a concern in previous cases that “ill-mannered, uncouth, socially unacceptable behaviour is properly dealt with by social means, as opposed to criminal law. … We shouldn’t wander in our interpretation of what Parliament has adopted into becoming morally prudish.”
The Supreme Court reserved its decision.
Sean Fine