B.C.’s top court has ordered a new trial for a former Coquitlam hockey and baseball coach convicted of secretly taking photos of two boys while they changed in a locker room.
Randy Downes was convicted in June 2019 on two counts of voyeurism for taking the photos of the boys, who were between the ages of 12 and 14, in their underwear.
In a split decision, the B.C. Court of Appeal ruled Tuesday that the trial judge didn’t properly consider evidence suggesting that boys of that age would not generally be naked in a locker room.
Under a relevant provision in the Criminal Code, the crime of Voyeurism requires that the person under observation be in a place where they could reasonably be expected to be nude.
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In their decision, two members of the three-judge panel rejected Downes’ argument that the photos were not surreptitiously taken, or that they were taken in a place that there was no reasonable expectation of privacy.
“However, the judge erred in failing to address conflicting evidence with respect to whether the subjects of the photographs were in a place in which a person could reasonably be expected to be nude,” the ruling states.
“There was evidence that nudity was not expected in these dressing rooms while the appellant was present. What one expects to observe at the place will depend upon how the place is being used when the observation or recording is made.”
In their dissenting opinion, the third judge argued that dressing rooms are generally a place where nudity can generally be expected, an expectation that should not vary depending on who is using the rooms or when.
Downes was charged in 2016, after a police search of his home turned up what investigators called digital evidence of images of children that met the criteria for voyeurism and child pornography.
Investigators said they believed the photos were taken between June 2013 and April 2016.
At trial, the judge called the photos “telling,” stating that it was clear that the subject of the dozens of photos presented as evidence was the boys’ bodies.