A longtime Lower Mainland youth coach found guilty of voyeurism in June 2019 will get a new trial after the B.C. Court of Appeal overturned his conviction this week.
Police descended on Randy Downes’s Coquitlam home on April 27, 2016 and seized electronic devices containing thousands of images of young boys.
Downes, now 64, had made a living as a youth hockey and baseball coach in Coquitlam, Burnaby, New Westminster and other Metro Vancouver cities and as a youth sports photographer.
Five months after the search warrant was executed, Coquitlam RCMP sent out a news release with Downes’ mugshot attached and hosted a press conference, saying he had been charged with making and possessing child pornography as well as with voyeurism.
Investigators called for more potential victims and witnesses to come forward.
Despite having 16 months to investigate and tens of thousands of photos to sift through, however, police and Crown prosecutors failed to produce any images that met the definition of child pornography at a preliminary inquiry, according B.C. provincial court Judge Patricia Janzen, who ruled on their submissions.
B.C. Supreme Court Justice Heather MacNaughton eventually convicted Downes in June 2019 of two counts of voyeurism on the weight of 38 photos Downes took of two of his players in different Lower Mainland sports dressing rooms in 2013 and 2014.
He was given a suspended sentence and six months’ probation.
MacNaughton ruled Downes had taken the photos surreptitiously on his cellphone in a place where the boys could reasonably have expected privacy and where a person could reasonably be expected to be naked, making him guilty of voyeurism.
The photos showed the players in “various states of undress” – with bare torsos or in boxers – but Downes’s lawyer Glen Orris had argued the photos weren’t sexualized.
Orris had also argued the players and their teammates, who were between the ages of 12 and 14 when the pictures were taken, never showered after games and practices, so the boys would never have expected to be naked.
Defence lawyer Donald Sorochan repeated the gist of that argument to the B.C. Court of Appeal at a March 5, 2021 hearing, according to a ruling Tuesday.
Writing for the majority in a split decision by the appeals court, Justice Peter Willcock was convinced, ruling that the issue of whether nudity would have been expected in the dressing room at the time the photos were taken had not been addressed in MacNaughton's ruling.
Willcock said a room, including a change room, may be used for multiple purposes and what a person expects to see in a place will depend on how the place is being used at the time.
“In my opinion, a conviction cannot be founded solely upon evidence that at some time nudity was expected in the dressing rooms in question,” Willcock wrote.
While Downes’s conduct was “undoubtedly a breach of trust and invasive of privacy,” Willcock said that did not necessarily make it a sexual offence under the section of the Criminal Code he was convicted under.
Willcock dismissed Sorochan’s other proposed grounds for an appeal, including an argument that MacNaughton had incorrectly concluded Downes had taken the photos surreptitiously.
“In my view, in short, there is no merit in any of the grounds of appeal other than the question of whether the trial judge appropriately addressed whether the photography occurred in a place in which a person could reasonably be expected to be nude,” Willcock wrote.
He set aside Downes’s conviction and ordered a new trial.