Mr. Downes was convicted of two counts of voyeurism contrary to s. 162(1)(a) of the Criminal Code after being found to have surreptitiously taken photographs of two adolescent male hockey players, whom he coached, dressed only in their underwear, in arena dressing rooms. In convicting Mr. Downes, the trial judge found that an arena dressing room was a “place in which a person can reasonably be expected to be nude”, pursuant to the definition of the offence as enumerated in s. 162(1)(a). 

Mr. Downes appealed his conviction to the Court of Appeal for British Columbia. There, a majority of the Court upheld the appeal and granted a new trial on the basis that the trial judge had found that nudity was expected “at some time” in the dressing rooms in question, but did not address whether nudity was expected at the time the photos were taken. They found that such contemporaneity was necessary to ground the offence, otherwise conduct that was not engaged in for the purpose of, nor resulted in, the observing or recording of nudity or sexual activity would be criminalized as a sexual offence under the section. 

The minority opinion of the Court of Appeal for British Columbia would have dismissed the appeal, noting that the Criminal Code does not speak to a requirement for the expectation of nudity to be contemporaneous with the observations or recordings being made by the accused. 

The Crown appealed the Supreme Court of Canada as of right.