Case Summary
On April 17, 2023, 28-year-old Brandon Klayme was convicted of child luring, possession of child pornography, and making sexually explicit material available to a child.1
Klayme's convictions related to the online sexual exploitation of C.H., a 12-year-old girl in Wisconsin, over several months in 2018.2 (C.H. cannot be identified, in accordance with a court-ordered Publication Ban.3) A man referring to himself as "Jay" sent C.H. sexually explicit messages, exposed his genitalia to her in video conversations, and demanded that she "take sexually explicit photos and videos of herself and forward them to him."4 "Jay" interacted with C.H. via the now-defunct Google+ service for approximately the first week, and subsequently on the social media platform Kik.5
C.H.'s mother learned of these events in December 2018, when she observed an explicit image on her daughter's phone. She contacted Wisconsin police immediately after speaking with C.H. and turned the phone over to them.6 Forensic analysis of the phone yielded numerous explicit text messages, photos, and videos, as well as a voicemail from "Jay" to C.H.7
There was limited information as to "Jay"'s appearance. C.H. had rarely seen his face. She gave a general description of "Jay" as having a round face shape and "dark skin, dark eyes and dark hair."8 (There is no publicly available information as to whether or not Klayme's appearance was similar to this description and it is not known whether any physical identification was made or challenged at trial.)
Police did know "Jay"'s Kik username, however: "fus__ro_dah", with two underscores between "fus" and "ro".9 This username is in reference to Fus Ro Dah, a component of the magic system in the popular video game Skyrim.10
The Wisconsin police sought to identify "Jay" through his username. But while preparing the subpoena materials to obtain the perpetrator's account information from Kik, an officer misspelled the username as "fus_ro_dah", with only one underscore between "fus" and "ro". Coincidentally, this was Klayme's Kik username: identical to the perpetrator's, except for the missing underscore.11 It is unsurprising that more than one person would choose a username based on this prominent phrase from a popular game. As Halifax journalist Tim Bousquet has speculated, it seems plausible "that Klayme was the first Kik user inspired to use Fus Ro Dah for their handle. Later, when 'Jay' came along, he found that the one-underscore version had already been taken, so he put a second underscore after 'fus'."12
Due to the misspelled username, Kik provided police with Klayme's account information, instead of the perpetrator's, including Klayme's gmail (i.e., Google email) address.13 Police then obtained further records from Google, showing that the IP address from which this gmail account had been accessed in December 2018 was somewhere in Halifax, Nova Scotia.14
(An IP address, or "Internet Protocol address", is the unique number assigned by the internet service provider to each device that accesses the internet using its network.15 For clarity, there is no connection between Klayme's gmail account or the Google IP address records and the initial Google+ interactions between C.H. and the perpetrator.16)
The Wisconsin police notified the Halifax Regional Police, who took over the investigation and obtained Klayme's home address from Bell Aliant, his internet service provider.17 In February 2020, police obtained a search warrant for Klayme's home in Dartmouth (which adjoins Halifax), where he lived with his parents and siblings. They seized computers and cell phones from Klayme's home, but no incriminating "images or chats were found on any of the devices."18 In short, there was no evidence that Klayme's Kik account (or his email) had been used to interact with C.H.19 Moreover, there was no evidence "of any Kik account activity by Mr. Klayme" at the time of the offences.20 Nonetheless, he was swiftly charged.21
The court proceedings resulting in Klayme's wrongful conviction then unfolded slowly over the course of several years.22 His trial began on November 9-10, 2021 and continued on May 31, 2022. The Crown prosecutor closed her case on the 31st (having finished calling her evidence). Klayme's defence lawyer then asked for a directed verdict – that is, the judge would acquit Klayme without needing to hear from the defence, because "the Crown failed to prove an essential element" of the case against him.23 The specifics are not publicly available, but perhaps pertained to identity. As the trial judge put it: "the key issue in the trial was whether the Crown had established, beyond a reasonable doubt, that Mr. Brandon Klayme was, in fact, 'Jay'."24 Except for the (incorrect) username, nothing connected Klayme to the offences.25
On July 20, 2022, the trial judge declined to enter a directed verdict. Klayme's trial concluded on December 19 of that year, with Klayme choosing not to testify.26 The trial judge then convicted Klayme on the strength of the Crown's digital evidence, which he summarized as "includ[ing] numerous references to the IP addresses and other information for accounts such as Google+, Google, Kik which referred to different usernames, like ''Jay' [sic] with their subscriber contact being listed as Mr. Brandon Klayme."27
Following Klayme's April 2023 conviction, a sentencing hearing was scheduled for December 18, 2023.28 A probation officer was assigned to meet with Klayme and prepare a Pre-Sentence Report. She wrote that "during her interview with Mr. Klayme, he [was] polite, respectful, and cooperative, but took no responsibility and maintained that he was innocent and repeatedly [stated] that his 'email account had been hacked.'"29
During the sentencing hearing, C.H. and her mother, L.S., read Victim Impact Statements by video from Wisconsin. After "Jay" had preyed on her, C.H. underwent psychiatric hospitalization and attempted several times to end her life. She faced an ongoing struggle with mental health, body image, and relational difficulties resulting from this trauma.30
At the conclusion of the hearing, the trial judge "offered Mr. Klayme the opportunity to make any comments ... to the Court," C.H., or L.S.31 Klayme said "that he was sorry to hear what had happened to [C.H.] and her family, but maintained ... that [this was] occasioned by another person and not by him."32
On January 4, 2024, Klayme was sentenced to 18 months' imprisonment, followed by 18 months of probation with restrictive terms meant to protect the community from a child sex offender while promoting his rehabilitation. He was required to participate in a sex offender treatment program. The trial judge also ordered that Klayme avoid public areas such as parks or swimming pools (unless supervised by another adult aware of his convictions), and banned him from using the Internet for any purpose besides employment or education, both for a five-year period. His name was added to the national sex offender registry.33
In his Reasons for Sentence, the judge emphasized the devastating impact of the offences on C.H. and her family.34 He found that: "there can be no doubt whatsoever that this offender bears a very high degree of responsibility or moral blameworthiness for these sexual offences committed against a vulnerable 12-year-old."35
Klayme appealed his conviction. While "trying to figure out why the digital forensic evidence pointed at him," Klayme and his appeal lawyer, Zeb Brown, discovered the username spelling mistake in the "subpoena drafted by [the] Wisconsin police officer."36 They realized that this error had "resulted in police obtaining incorrect account information from Kik that included Klayme's email address, which was [then] used to get his IP address from Google."37
Brown presented this new evidence of the username misspelling to the Nova Scotia Court of Appeal. Klayme stated in his accompanying affidavit that this "subtle mistake ... changed the course of my life. This discrepancy went completely unnoticed at the trial. It was never brought to the attention of the trial judge."38
The appeal prosecutor agreed with Klayme that his convictions should be overturned. Moreover, the Crown obtained fresh evidence showing that "the correct username ... would have identified an individual whose ... IP address appears to be in California."39
The appeal court overturned Klayme's conviction and acquitted him on July 23, 2024.40 Justice Farrar, who delivered the court's decision (on behalf of all three appeal judges), found that "if the correct username had been used at the start of the investigation, the subsequent steps ... would not have led to Mr. Klayme."41 He noted that "the information about the usernames [not matching] was available at the time of the trial, [but] there is no evidence confirming or explaining how it went unnoticed."42
The appeal court held that Klayme's case was "not a situation where an acquittal is entered because the Crown has failed to prove beyond a reasonable doubt the essential elements of an offence or [that] an error during the trial made the verdict unsafe."43 But rather: "In the circumstances, Mr. Klayme is factually innocent of the offences. He should never have been charged, let alone convicted."44 This is a rare declaration of factual innocence which other Courts of Appeal have been unwilling to make.45 Factual innocence is a requirement under the 1988 Federal Provincial Guidelines on compensation for wrongful convictions, but it remains to be seen whether this declaration will assist Klayme in obtaining compensation.46
Klayme, now 30 years old, had already served his prison sentence and was on probation at the time of his acquittal. Justice Farrar observed that: "This court, any court, cannot undo what has been done to Mr. Klayme and his family," but could only "put the legal proceedings to an end."47 He concluded by wishing Klayme: "Good luck."48
Klayme's acquittal drew international attention and was soon discussed in numerous newspapers and IT (information technology) publications. It represents one of the first remedied wrongful convictions in Canada involving errors with respect to digital evidence. Many expressed disbelief and outrage on behalf of both Klayme, whose case was described as "Kafkaesque", and C.H., whom "Jay" had hurt so deeply – after which, as one IT writer phrased it, he "has remained free to do god knows what while Klayme was sitting in jail."49