B.C.'s highest court has overturned the conviction of a former Metro Vancouver youth hockey coach who photographed boys undressing in a change room and ordered a new trial on charges of voyeurism.
But on Tuesday, the B.C. Court of Appeal ruled that the trial judge hadn't properly considered evidence suggesting boys of this age would not generally be naked in the locker room.
Justice Peter Willcock wrote that the voyeurism section of the Criminal Code of Canada requires that the person being photographed is in a place where they "can reasonably be expected" to be fully nude.
"While the appellant's conduct was undoubtedly a breach of trust and invasive of privacy, that does not necessarily make it conduct that this section criminalizes as a sexual offence," Willcock wrote in his reasons for overturning the conviction.
The ruling was not unanimous, gaining the support of two justices on a three-judge panel.
Dissenting judge says boys' privacy 'criminally invaded'
Justice Gail Dickson wrote a dissenting opinion, arguing that regardless of the expected use of the dressing room at the time the photographs were taken, the players inside it had a reasonable expectation of privacy.
"This is particularly so where, as here, the dressing room is predictably used by children," she wrote.
She said Downes had "criminally invaded" the boys' privacy and sexual integrity by taking photos of them in their underwear.
"This is so regardless of whether the photographs he took met the definition of child pornography, regardless of his purpose in taking them and regardless of whether nudity could be expected in the dressing room specifically when he took the photographs," Dickson said.
Downes coached at various levels for three decades in the Lower Mainland, including with the Burnaby Winter Club, the Coquitlam Minor Hockey Association and Coquitlam-Moody Baseball.
His charges relate to photographs he took in 2013 and 2015. His original trial heard that in many cases, he cropped and emailed the photographs to himself after snapping them on his phone.
The images were later downloaded to his home computer and saved to a USB stick.
The investigation into Downes began in 2016 when his electronic devices were searched by border officers when he was returning to Canada from a trip to Washington state.