The Canadian government has withdrawn all criminal charges in the case of Ryan Matheson, an American citizen who was arrested on child pornography charges after Canadian customs officials found a risqué comic on his computer. Matheson was originally referred to as "Brandon X" when the case was first reported, in order to protect his privacy.
The Comic Book Legal Defense Fund and the Comic Legends Legal Defense Fund, which funded a portion of Matheson's defense, announced this morning that the charges against Matheson have been dropped. Matheson will plead guilty to a non-criminal regulatory offense under the Canadian customs act, but he will have no criminal record stemming from this case, and his name will not appear on any sex offender registry.
The Canada Border Services Agency is notorious among comics readers for seizing manga and other comics that they suspect of being obscene. The list of confiscated materials ranges from "Sailor Moon" to obviously adult titles such as "Too Hot to Handle," which was published by Eros Comix, the adult imprint of Fantagraphics. Creator Tom Neely was stopped last May on his way to the Toronto Comic Arts Festival and searched by customs agents, who seized five copies of the comics anthology "Black Eye" that he was bringing to the festival.
Matheson's plea bargain brings to a close a two-year ordeal in which he was arrested and charged with criminal possession of child pornography after Canadian customs officials found a single questionable image on his computer. While in custody, he was mistreated by guards and denied access to food, lawyers and the U.S. Embassy. Upon his release, he was prohibited from using a computer outside his workplace or even from changing jobs.
In a personal statement, Matheson said he decided to accept the plea bargain because, although he was sure he had committed no crime, the risks of a trial were too high. "If I had gone to full trial, the original criminal charges against me posed the risk of a minimum mandatory sentence of one year plus having to register on a sex offender registry in Canada and potentially even in the United States," he said. "Therefore, in the end I decided that the final plea deal was acceptable because the criminal charges would be withdrawn completely."
Matheson, a software engineer, anime and manga fan and aspiring artist, was 25 and traveling to a foreign country for the first time when he flew to Ottawa, Canada, to visit a friend in April 2010. A Border Service Officer interviewed him on arrival at the Ottawa International Airport and sent him to another officer for a secondary inspection. "I knew I didn't have anything to hide, so I willingly gave them my password to log in to my computer," he said. "Through an unusual search that lasted over four hours, they found anime illustrations from art books and other fully-clothed drawings of fictional anime and manga characters on my computer. Unfortunately, Canadian customs officers consider any comic or anime-style drawing suspicious."
Upon going through the files, the customs officer found an image that was described in the court papers as "a collage of 48 discrete animated images which portray 'persons' involved in sexual acts." This image is actually a moe-style parody of a classical Japanese woodblock print titled Shijūhatte, which roughly translates to "the 48 positions," and is in turn based on a print of the 48 wrestling positions. Moe is a Japanese style of super-cute, childlike figures. While the illustration does show these figures having sex, there is very little detail. To put this into perspective for those who aren't familiar with manga, the images are less explicit than the Simpsons porn that populates of the internet. Furthermore, the images were actually drawings, so no actual "persons" were depicted, a point Matheson's attorneys made in their filing.
The customs officer went to his supervisor's office and checked the definition of child pornography in the Canadian criminal code before deciding to detain Matheson. (The border officers' statements are unclear as to at what point Matheson was officially placed under arrest and whose decision it was to arrest him.) The officer read Matheson his rights, and Matheson said he did not want to contact a lawyer or the U.S. Embassy. Matheson said in the court papers that at this point "he did not think that anything was 'seriously wrong,'" because the court officers repeatedly referred to the image as "borderline." They also told him that he could speak to someone from the U.S. Embassy "anytime" if need be. "Several times that day I was told that I was going to be let free, but through delays and uncertainty of the situation the police finally decided to arrest me," Matheson said in his statement to CBLDF.
At this point, the customs officers called the Ottawa Police Services. The police officer who responded later wrote in his report that "they were not sure if the images constituted pornography." He spent about two minutes looking at the image, then called a detective from the high-tech crime team who told him, without actually seeing the image, that it would be child pornography. She asked that Matheson be arrested and taken to the police station. Although the situation had escalated at this point, the police did not read Matheson his rights or give him the opportunity to call a lawyer until more than an hour later.
Matheson was taken to the Ottawa Police Central Division cellblock. At this point, he had been traveling or in detention for over ten hours, but when he asked for something to eat, he was mocked or ignored. He was given a muffin the next morning, and although the cells were cold, he was not given a blanket. "I politely asked an officer at the police station if I could speak to the U.S. embassy, but she replied, 'Are you serious? I don't think we have that here,' and walked away," Matheson said. "I was never able to talk to the embassy and even when my brother arrived for my bail, he too was denied from seeing me at all. Police officers who transported me would slam metal doors on my head and laugh at me, saying, 'this one's easy!' And finally, after being transported to the long-term detention center, guards would torment me with phrases like, 'you know, if you get raped in here, it doesn't count!' I was jailed for five days before bail, longer than most people."
Although Matheson had no criminal record, the first prosecutor in the case set stringent bail conditions for his release. "My bail conditions tightly restricted my use of computers and the Internet," Matheson said. "My conditions had even specifically named a single company I could work for, which prevented me from advancing my professional career. I am a computer programmer and I've been in love with computers ever since I was seven years old. To place such overbearing conditions on me was heart-wrenching and very difficult to endure."
Matheson's defense attorneys were Michael Edelson and Solomon Friedman of the Ottawa law firm Edelson Clifford D'Angelo LLP. In papers filed with the court, they stated that the officials who detained Matheson had violated his rights under the Canadian Charter of Rights and Freedoms and the Vienna Convention in several different ways: They did not promptly tell him why he was being held, nor did they offer him access to a lawyer when he was first detained; they did not read him his rights anew when the image was found and the possibility of more serious charges arose; and they did allow him to contact the U.S. Embassy. Furthermore, Matheson's lawyers claimed that the customs officers conducted an illegal search of Matheson's computer. Once the border officials found an image they deemed pornographic, the case became a criminal investigation rather than a customs matter. At this point, a warrant would be required to do any further search of the computer, yet customs officials continued examining it. The Ottawa police did get a search warrant the following day, but the lawyers' papers state that the application for the warrant "contains numerous erroneous and critical misstatements of the facts."
Edelson and Friedman filed a Notice of Application with the Ontario Court of Justice last month, outlining the facts of the case and the alleged violations of Matheson's rights. The court papers are available on the CBLDF website.
Aside from the way Matheson was treated, CBLDF director Charles Brownstein raised the question of whether possession of images such as the 48 positions or another parody manga page found on Matheson's computer should be prosecutable at all. "While these images are unquestionably adult in nature, it is baffling how anyone can view them and define them as depictions of child sex abuse," Brownstein told CBR. "It underscores the profound injustice of prosecuting people under child pornography laws for possession of comic book art. Art is subjective, and its merit lies in the eye of the beholder. Child pornography is objectively and indisputably photographic evidence of a crime where a real person was abused. Those two categories should not be blurred. Some have suggested that it's okay to prosecute people for possession of lolicon, hentai or other extreme comics genres, but the problem is that allowing for those exceptions is to create precedent that allows for what happened to Ryan to become more widespread. When you start allowing the law to treat art like evidence of a crime, you create the potential for officials to wrongly interpret constitutionally protected speech as criminal evidence, and to harm innocent people the way Ryan was harmed. This does nothing to protect real victims of sex crimes, it only hurts innocent people and damages the culture of free expression."
While Matheson no longer faces criminal charges, the legal costs of the case total over $75,000. The CBLDF contributed $20,000 and the CLLDF contributed $11,000 toward the costs of the defense, and the CBLDF also provided advice and recruited expert witnesses. That leaves Matheson with a debt of $45,000, and the CBLDF is currently seeking donations to pay off that debt; contributions can be made through the CBLDF website.
Read the full CBLDF/CLLDF press release, Matheson's official statement and the full court documents below.
Official Press Release
The Comic Book Legal Defense Fund and the Comic Legends Legal Defense Fund are pleased to announce that the Crown has withdrawn all criminal charges in R. v Matheson, the case previously described as the “Brandon X case” involving a comic book reader who faced criminal charges in Canada relating to comic books on his computer. The defendant, Ryan Matheson, a 27 year old comic book reader, amateur artist, and computer programmer has been cleared of any criminal wrongdoing.
The total legal costs of this case exceeded $75,000. After taking the case last summer, the Comic Book Legal Defense Fund contributed $20,000 to the defense, and the Comic Legends Legal Defense Fund contributed $11,000. The CBLDF also participated in shaping the defense, including recruiting expert testimony for the trial. The organization is currently seeking funds to pay off the $45,000 debt Matheson incurred as a result of his case. To make a contribution to this important effort, please visit www.cbldf.org.
In 2010, Matheson was wrongfully accused of possessing and importing child pornography as a result of a constitutionally invalid search of his laptop because of constitutionally protected comic book images on that device. He was subjected to abusive treatment by police and a disruption in his life that included a two year period of being unable to use computers or the internet outside of work, severely limiting his life and education. Mr. Matheson has agreed to plead to a non-criminal code regulatory offense under the Customs Act of Canada. As a result of the agreement, Matheson did not stand trial. The defense of this case was waged by Michael Edelson and Solomon Friedman of Edelson Clifford D'Angelo LLP. The full notice of application detailing Mr. Edelson's defense, and outlining the outrageous and unlawful treatment Mr. Matheson endured is available at www.cbldf.org. Speaking out for the first time, Ryan Matheson says: “I’m glad to finally put this awful ordeal behind me. Ever since the beginning I knew I had committed no crime, so I was never willing to accept a plea to any criminal charge. The entire legal process is very traumatizing, and the overzealous bail conditions imposed on me were very difficult to endure. Although my defense was extremely strong, all trials are inherently risky and I value my life too much to risk a potential minimum mandatory sentence. I am very grateful for the spectacular work Michael Edelson and his team put into my case, and to all the generous people who supported me and contributed to my defense. I was able to stand up to the very last day and fight for something I believe in.” Matheson has also written a personal statement about his case that appears on www.cbldf.org.
Michael Edelson, who managed the defense says, "The client, and my firm, are grateful to the members of CBLDF and CLLDF for their invaluable financial and moral support, with respect to this case, which was of such critical importance to the client, given the very positive outcome we were able to achieve in an area of the law where, here in Canada, the Crown very rarely exercises its discretion to withdraw charges of this nature. The client will have no criminal record, his name will not appear on the Sex Offender Registry in Canada, or elsewhere."
The Notices of Application available on CBLDF.org detail for the first time the extreme mistreatment Mr. Matheson suffered at the hands of Canadian authorities. He had his right to counsel and Vienna Convention consular rights violated by being detained without being properly informed of the reason for detention, nor was he provided with access to an attorney or the American Consulate. The application asserts that Customs officers acted as agent for police and conducted an illegal search of his property. He was also the subject of cruel and unusual punishment, including being denied food and blankets. Matheson was even told by police transporting him to prison that "if you get raped in here, it doesn't count!” The defense detailed these and other abuses, and outlined that the comics at issue are constitutionally protected in the United States, the client's home country, possess artistic merit, and are widely available in Canada, Japan and the United States.
Although the outcome of this case is ultimately positive, comic book readers should be aware that there are still dangers for traveling with comics in Canada. Edelson says, "Aside from the very positive outcome to this story, your members should be cautioned concerning the search and seizure regime here in Canada exercised by the Canadian Border Services Agency. Moreover, they should also be aware that although anime and manga is legal in many areas of the United States and Japan etc, to possess and utilize, the Canadian authorities may take a different view if this material is found on any laptops or mobile devices when you enter the country. Many of the issues that arise in similar circumstances are thoroughly addressed in our comprehensive Notice of Application." Edelson’s firm has created a new advisory on traveling with comics and manga in Canada that is available now at CBLDF.org
"This is a good outcome, and we're glad we were able to contribute to it," CBLDF Executive Director Charles Brownstein said. "While one always wants to be able to change the rules in court, those opportunities are rare, and in this case the defense's extraordinary effort in persuading the crown to drop criminal charges is a very positive conclusion. We are now focusing our efforts on raising money to pay off Ryan’s legal debt. We are also working with Ryan and experts in the manga community to create educational tools to help others from needing to go through anything like this themselves. We hope that people will donate to the CBLDF to help us achieve these goals quickly."
Comic Legends Legal Defense Fund board member Leonard Wong said, "We're glad this is over for Ryan, and want to thank him and his attorneys for their willingness to stand up to our government in this matter. We're also pleased that the Comic Book Legal Defense Fund were able to assist the defense financially and substantively, and are creating new tools to help prevent these kinds of cases in the future. Unfortunately, this could easily happen again, so we continue our stride to establish the CLLDF as a more active ongoing concern. Our immediate focus will now shift towards raising funds and preparing for any future attacks on comics in Canada."
Please visit www.cbldf.org today to make a donation in support of paying off Ryan’s legal defense and creating new tools to combat abuses like this from happening in the future.
The Comic Book Legal Defense Fund was founded in 1986 as a 501 (c) 3 nonprofit organization dedicated to the preservation of First Amendment rights for members of the comics community. They have defended dozens of Free Expression cases in courts across the United States, and led important education initiatives promoting comics literacy and free expression. For additional information, donations, and other inquiries call 800-99-CBLDF or visit them online at www.cbldf.org.
The Comic Legends Legal Defense Fund was founded in 1987 to raise money for the defense of a Calgary, Alberta comic shop whose owners were charged with selling obscene materials. The CLLDF has since been maintained on an ad hoc basis to provide financial relief for Canadian comics retailers, publishers, professionals, or readers whose right to free speech has been infringed by civil authorities. Largely dormant since the early 1990s, the CLLDF is reforming to provide support for this case, and reorganizing to ensure that help will be readily available for future cases involving Canadian citizens or authorities. To help the CLLDF in this mission, please go to www.clldf.ca.