No increase to child-porn sentence
Provincial appeal court upholds three-year term
The Alberta Court of Appeal has decided not to increase the three-year sentence handed earlier this year to former Calgary security consultant Daniel Clayton on convictions for accessing, possessing and distributing child pornography.
In a written ruling released Tuesday, justices Connie Hunt and Ron Berger agreed that although the trial judge “might have imposed a heavier sentence, we are not persuaded that the sentence she imposed was demonstrably unfit.”
In dissent, however, Justice Bruce McDonald said he would have sentenced Clayton to a total of eight years for collecting and sharing material that he referred to as “vile filth.”
“In my view, it is time the issue of the proper sentence for offences relating to child pornography be addressed,” Justice McDonald said in dissent.
“We have in the case at hand an individual who had in his possession large amounts of child pornography as found by the trial judge. In addition, he was utilizing a very sophisticated software program to assist in peer-to-peer sharing of child pornography.”
Queen’s Bench Justice Kristine Eidsvik imposed the sentence on Clayton, 30, for using the communication software to access and distribute the child pornography over 10 months in 2009-10.
Forensic experts found about 4,600 images and videos on two computers belonging to Clayton. The material included acts of aggravated sexual assault on children less than a year old.
Eidsvik also found Clayton had chatted online with at least 213 people, including undercover police officers, on 34 different days.
Clayton, who denied involvement and claimed his computers were hacked, received a two-year sentence for distribution, as well as one-year terms for accessing and possessing child pornography. They are being served concurrent to each other but consecutive to the distribution sentence.
Crown prosecutor Goran Tomljanovic had argued the sentencing judge did not take into account differences between the cases on which she relied, the majority of them guilty pleas which are given discounts for expression of remorse, and this one.
However, the appellate court majority said “there is no error in principle in how the sentencing judge used these other cases to arrive at a sentence.”
Defence lawyer Kim Ross had argued that the sentence handed down by Eidsvik on May 18 should remain intact.
Clayton, 30, did not appeal the sentence.
Following his sentencing, however, he wrote in a note passed to the Herald by trial defence lawyer Balfour Der, “I maintain my innocence, I am in contact with the Association of the Wrongfully Convicted (sic) and new evidence has come to light as a result of the media attention that will be fully investigated.”
Clayton was also ordered to not work in any position involving children, paid or volunteer, after his release, He also was ordered to be registered as a sex offender for 20 years.
As it is a split decision, the Crown could yet apply for leave to the Supreme Court of Canada, if the country’s top court deems it of sufficient national interest.