By Suzie Dunn, Moira Aikenhead & Jane Bailey

Young athletes should be safe from sexual exploitation and privacy invasions. In the digital era, this includes freedom from coaches secretly recording them in changerooms.

On March 10th, the Supreme Court of Canada endorsed these statements in R v Downes.

Canada’s top court found that the Criminal Code’s voyeurism provisions prohibit people from secretly recording others in “quintessentially ‘safe places’”, such as bedrooms, bathrooms and changerooms. 

This case involved Randy William Downes, a children’s hockey coach and sports photographer who secretly took dozens of photographs of two 12-14-year-old hockey players, including photos of them in their underwear, while they were in a changeroom.

This decision is significant given the larger context of sexual violence in sports in Canada, which often involves an abuse of trust and authority by coaches. The prevalence of sexual violence in sports such as hockey and gymnastics has recently been exposed, and Hockey Canada is facing increasing scrutiny for its handling of sexual assault allegations. Like other forms of sexual violence, sexual violence in sports is under-reported and institutionally silenced

Addressing sexual violence in sports includes protecting young athletes from being secretly recorded in changerooms. Some minor sports organizations have rules forbidding cell phones and cameras in changerooms, and requiring the presence of two adults in changerooms with children to help prevent the exploitation of athletes, including secretly recording them. Downes confirms that such secret recordings are criminal, even if they do not depict nudity.

The Criminal Code prohibits secretly recording people in situations where privacy could reasonably be expected and: (i) the subject is in a place where a person can reasonably be expected to be nude; (ii) the subject is actually nude in the recording; or (iii) the recording was made for a sexual purpose.  In Downes, the question before the court related to (i) – specifically, whether a changeroom is the kind of place where people should be protected from being secretly recorded. 

The answer to this question may seem an obvious “yes” to many.  However, a majority of the B.C. Court of Appeal had concluded that it depends on whether someone could reasonably be expected to be nude in the changeroom at the time the photos were taken. While Downes had secretly photographed the boys in their underwear, and the boys reasonably expected privacy in these circumstances, some evidence suggested that boys of their age often do not remove all their clothing in changerooms. As a result, a majority of the B.C. Court of Appeal concluded that the Crown had not proved the changeroom was a place where a person could be expected to be nude at the time Downes took the photographs. As such, Downes was acquitted.

The Supreme Court of Canada disagreed with this interpretation. It recognized changerooms, like bedrooms or bathrooms, as “quintessentially ‘safe places’” where people reasonably expect privacy from being secretly recorded whether they are fully nude or not.

The Court found that secret recordings taken in these types of private places can result in “humiliation, objectification, exploitation, shame, and loss of self-esteem”.  It held that such recordings prevent those targeted “from developing their sexuality as they see fit” and create “a risk of widespread dissemination of the photos to strangers.” It emphasized the need to take into account the experiences of those targeted, and the effects on their sexual integrity and privacy rights.

Other sections of the voyeurism law specifically protect people from being secretly recorded when they are actually nude or engaged in sexual activity. The section discussed in Downes protects people in places where people are likely to be nude, but it does not require them to be nude at the time the image is taken. This decision lets people know that they are safe from being secretly recorded when they are in these types of quintessentially private places. To require that nudity be expected at the time a recording is made in places like changerooms would mean that safety from being secretly recorded could shift from minute to minute, leading to uncertainty of when exactly people are safe from secret recordings in changerooms. Further, those who already feel unsafe removing all of their clothing in changerooms would be less protected. This may include LGBTQ+ community members who are often not safe to do so because of discriminatory attitudes about their gender and/or sexual identities. This decision lets people, including young athletes, know that when they are in places whose quintessential purpose is to provide a safe and private space to undress, they are safe from being secretly recorded at all times. In today’s image-based society, hidden cameras are being used to film and distribute photos of people in places where they should be able to assume they are free from others recording them. They deserve to be safe in these spaces.