Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
The US International Trade Achillies Heel and Pet Abuse Murder
The episode dives into the intriguing dynamics between the United States and Canada, particularly surrounding trade and intellectual property (IP). As US President Donald Trump threatened tariffs on Canadian goods, a discussion emerged on how Canada could respond strategically. The central theme revolves around the underappreciated power of intellectual property as a bargaining chip in trade negotiations, particularly for a smaller nation like Canada. Michael Mulligan, a Barrister with Mulligan Defence Lawyers, emphasized that tariffs, often seen as the primary retaliatory measure, could ultimately harm Canadian consumers more than US producers.
Understanding the intricate mechanisms of tariffs is key to grasping the broader consequences they can have on the economy. For instance, imposing a tariff on imported orange juice or motorcycles from the US would lead to inflated prices for Canadian consumers, while the US would experience only a minor economic sting. Thus, the discussion shifted toward a more sophisticated method of retaliation, focusing on IP laws established followin the North American Free Trade Agreement (NAFTA) and its successor, the United States-Mexico-Canada Agreement (USMCA). Mulligan pointed out that the core of US-Canada trade discussions for many years has centred on IP protections, effectively making them a focal point of economic dependence.
Mulligan explored real-world examples from Brazil and Antigua, which successfully leveraged their own IP protections in previous trade disputes with the US. Brazil’s complaint regarding US cotton subsidies led to the approved threat of revoking US IP protections, which ultimately resulted in the US conceding to pay Brazil $130 million per year. Similarly, Antigua exploited online gambling disputes with the US, illustrating how the threat of losing IP protection led to fruitful negotiations. This approach illustrates how Canada might consider the strategic use of IP law to apply pressure on the US, particularly given the reliance of many American industries on these legal protections.
The latter part of the episode transitioned dramatically into a more sombre topic: a first-degree murder case in Nanaimo. The gruesome details of the crime revealed a complex tapestry of intimate partner violence and the psychological implications associated with it. Michael discussed how the defendant’s appeal to self-defence was complicated by the admissibility of expert evidence related to intimate partner violence. The case set off a significant dialogue about the complexities of legal definitions surrounding self-defence and the importance of integrating expert insights into judicial proceedings.
The legal intricacies presented in the murder case add depth to the episode. The issue of admitting expert evidence played a crucial role, with the judge having to determine if the proposed testimony would be more prejudicial than probative. Mulligan explained that understanding the nuances of intimate partner violence can be vital to a fair trial, as conventional wisdom often fails to capture the complex emotional and psychological realities victims face. The juxtaposition of trade strategies and legal defences in murder cases provides a compelling lens through which to understand both the legal landscape and the very human stories behind it.
Ultimately, this podcast episode not only sheds light on the legal frameworks governing trade but also emphasizes the ethical responsibilities of the legal system to understand and acknowledge trauma in criminal cases. It stands as a poignant reminder of how law intersects with both international affairs and personal struggles, illustrating the multifaceted nature of legal advocacy today.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for our regular segment, legally speaking, joined as always with Michael Mulligan, Barrister and Solicitor, with Mulligan Defence Lawyers. Morning Michael. How are we doing? Hey, I'm doing great. Always good to be here. Some interesting things on the agenda. Where shall we start this week?
Michael Mulligan:I think a good place to start might be with a bit of an unusual topic for us, but it's certainly topical and it has to do with the US threats by Donald Trump to impose tariffs on Canadian goods entering the United States and what the Canadian response to that might be. And there's a very interesting legal angle on all of that which I don't know has received much consideration or coverage at this point. To this point, and one of the things which is going on right now today is a meeting of premiers and federal officials talking about what retaliatory tariffs Canada might impose on the United States in response if Donald Trump does what he is threatening to do, and so they're drawing up a list of, like you know, orange juice or you know things like Harley Davidson motorcycles and you know US liquor, and various things which Canada might impose tariffs on in response. Now, a tariff, of course, is a tax imposed on goods imported into the country, and every country's free to do that, and the idea is that it might punish the other country by increasing the value of those goods so less of them might be sold. The problem, of course, is that you're just taxing stuff right, and so it just makes all those things more expensive. If Canada imposes a tariff on Florida orange juice, no doubt the Florida orange juice producers will be unhappy. They'd sell less orange juice, but orange juice prices just go up. So you just produce inflation and costs for Canadian consumers. Same is true in reverse, and the problem for a smaller country like Canada is that the impact of the US trade in orange juice is going to be much to Canada, will be much less consequential than perhaps the reduction in sales to the United States of Canadian oil or whatever else we might be selling to them.
Michael Mulligan:Here's the interesting legal alternative to that, and it's important to go back to the original US-Canada free trade agreement that was implemented back in 1998.
Michael Mulligan:And one of the central parts of that agreement and it was really one of the core interests of the United States was to try to get increased protection for US intellectual property, and it's important to know that intellectual property provisions are just legal fictions.
Michael Mulligan:Right Things like prior to that free trade agreement. For example, canada would routinely grant licenses to Canadian drug manufacturers to manufacture drugs that were invented in the United States, and the United States didn't want that. They wanted patent protection so that their drug companies could get royalties for the use of the drugs or to sell the drugs. For the use of the drugs or to sell the drugs. And the same is true with a lot of other things which are a major part of US exports, quote-unquote. They would include things like copyrights for films, copyrights for music, copyrights for books, copyrights for TV shows, patents, trademarks that would be all manner of things Computer software. All of that produces a very large portion of the amount of money paid to the United States in trade, and all of that is subject and only protected by operation of domestic Canadian law, domestic.
Adam Stirling:Canadian law.
Michael Mulligan:Yeah, the Canadian government would be free to say, for example, no copyright protection for any US movies, tv shows, computer software, pharmaceuticals, wow.
Adam Stirling:So streaming is free suddenly.
Michael Mulligan:Yeah, all movies are free. Yeah, they can do that. All software is free. Copy all you want. You want to make a drug that US drug companies invented? Feel free to copy it. Do you have agricultural products, other high-tech things? Copy away, wow.
Michael Mulligan:And there are two examples of this. It was interesting to look at where this was used as a threat in response to a trade dispute with the United States from smaller countries, and it worked, wow. The best example of it is from Brazil, and there was a dispute there. It was a dispute over cotton subsidies, and it started back in 2002. And Brazil's complaint was the US was unfairly subsidizing its cotton producers, hurting Brazilian cotton producers. And so Brazil brought a complaint to the WTO, world Trade Organization, and they got approval to retaliate by removing US intellectual property protections. And the US drafted up a proposal to do that, which would mean that there would be no protection for US patents, copyrights, trademarks, pharmaceuticals, biotechnology, chemicals, motion pictures, music or book publishing. They would then implement large fees if they wanted to protect any of those things which the Brazilian government would collect, or those things could simply be copied for free in Brazil. The US lost its mind and capitulated, and they capitulated to Brazil and the US began paying Brazil $130 million per year to their cotton industry. It worked.
Michael Mulligan:The other example of it was Antigua. Antigua had a dispute with the United States over allowing gambling online gambling. Antigua tiny little country, tropical island it's about two and a half times the size of Washington DC. Tiny. It got itself a high-quality fiber optic cable connection to the Internet in the late 1990s and promptly used that to set up a huge online gaming industry. Gambling and a lot of the customers were in the United States. Us didn't like that much and so they were blocking and banning all of that. Antigua made a complaint again to the WTO and got approval to retaliate by taking US intellectual property and it authorized Antigua to simply not pay for US intellectual property. Allow Antigua to distribute movies, tv shows, music, all free or charged for whatever they wanted. And that dispute also resolved.
Michael Mulligan:And the beauty of this, it's an asymmetrical approach. Some writers have referred to it as sort of the trade equivalent of when you're having a fight with the United States. It's their little port in the Death Star, because so much of what the US exports is intellectual property and it's entirely illegal fiction and entirely outside of their capacity to control whether it's protected, and in the last round of negotiations with the US, the US Free Trade Agreement became the USMCA. The US interests in that were very much focused on exactly this issue. They wanted longer copy protection for recordings, music, tv shows, getting them extended to 75 years plus the life of the person, making criminal penalties for doing things like circumventing digital locks on performance, getting extended copyrights for music and sound recordings, locks on performance, getting extended copy rates for music and sound recordings.
Michael Mulligan:Getting increased protection for pharmaceutical patents that's a really, really big one. Some drugs cost half a million dollars a year for somebody. It's not because the drug costs that much to make, it's because there's a patent on it and the company usually is the US. There are very few, frankly, that are developed in Canada are able to extract huge amounts of money. All that can just be taken away, all of it. They were concerned about agricultural chemicals and wanting 10 years of data protection on how they're produced. They wanted increased protection for trademarks, brand names, symbols. All that could just go away. Open your own McDonald's, produce your own Tesla, you know, make a copy of the iPhone, Do whatever you want All books, movies, tv shows, all streaming. They're very concerned about having Canada implement criminal and civil protections for encrypted satellite and cable signals.
Adam Stirling:We just take that all away.
Michael Mulligan:They were able to negotiate enforcement at the border for things like goods, because I've talked about many of these things like patent protections for drugs. Are these sort of intellectual property, Canada passing laws making it criminal or putting civil penalties stopping Canadian drug manufacturers from just copying, you know, whatever Ozempec or I guess that's not a US one, but whatever US drugs all of that could just be taken away by Canada unilaterally. But they also managed to get things like protections put in place to stop the trade in quote counterfeit or pirated goods. And the concern there would be like, let's say, you're a US company, you're Apple and you develop some headphones or you develop whatever they're not made in the United States Most things are made somewhere else, frankly, and the US concern is some other company in China will just start making iPods or AirPods or whatever it is and then shipping them other places.
Michael Mulligan:So they're wanting Canada and other countries to put in provisions to stop quote pirated goods, which would be goods not made in the US, made somewhere else, but using US intellectual property. And so they were able to get increased protections and border protections and civil and criminal penalties put in place by Canada to stop that. All of that could just be taken away, and it's worked, uh, and it's worked. The brazil example, the the, the theory there is the us was so afraid, uh that this would spread as a method of enforcing uh trade requirements on the larger uh us that that's why they started paying hundreds of millions of dollars to brazil over cotton yeah right.
Michael Mulligan:It wasn't that brazil was going to bring them to the US, to its knees, by putting in tariffs on physical goods being exported there, although they had a few things they were threatening to do. It's this capacity to decimate US industries by taking away all of their intellectual property protections and simply the threat of doing that. You can imagine the degree of lobbying that would be going on in Washington DC and elsewhere from all of the drug companies, all of the chemical companies, all of the computer software companies, all of the music industry, the movie industry, the TV industry, the satellite industry, all of that. The value of what they have could be turned to zero. And when you have a country like Canada that's going to be larger and more sophisticated than Antigua, you could also imagine those kind of things being exported.
Michael Mulligan:Okay, us or Canadian companies are going to produce US drugs or drugs developed in the US.
Michael Mulligan:No patent protection here, or it's going to last one year, or the US company S company will have to pay, you know, 50% of whatever money it makes, whatever we want.
Michael Mulligan:And you could also see Canada choosing to export those things, and so it would be crippling to the United States and has the added bonus of not increasing the cost of products for Canada, like taxing orange juice imports or taxing Harley Davidson motorcycles which of course that's not great if you're the exporter of those things in the US but we're just taxing ourselves, right, we're hitting ourselves on the head. We'll show them. Look at us, we're hitting ourselves on the head by increasing the price of food. That's not a great response. This response would have the benefit of decreasing the cost of drugs, us products, all kinds of things. Great for inflation, great for Canadian consumers, devastating for US companies. And it seems to me, with these two examples of success, using just the threat of it, just the threat of it, it is a very appealing option and it effectively turns a smaller country into the tie fighter dealing with the US.
Michael Mulligan:Death Star, because it is literally their Achilles heel and they are terrified at losing it. And the companies whose entire value is completely dependent on you know, on legal protection and nothing else Like what's a US pharmaceutical company worth if you're just freely manufacturing whatever drug they might have developed for $5 billion? If that could just be freely copied and distributed, that company's worth nothing, and so this, I hope, is being considered as a more sophisticated alternative to taxing orange juice. This, I think, simply the threat of this, is likely to cause a huge swath of the US business interests to lose their mind, with the possibility of their entire value being turned to near zero, and all something that Canada is free to do, and we used to do it. We used to do this with drugs Before there was that free trade agreement.
Michael Mulligan:Canada would just authorize companies to make drugs in Canada. They were sort of promised oh yes, all this development will move to Canada if you have these long patent protections. That hasn't really happened, and so this, to my mind, has just great potential, and you can just imagine what it wants to be. Every movie studio, every pharmaceutical company, every agricultural high-tech company, monsanto will be losing their mind.
Adam Stirling:All of them. Well, I was just going to say we could make our own versions and sell them to other countries as Canadian products, and if we steal the patent from the US, the other country is not technically stealing, we can just call it ours.
Michael Mulligan:Yeah. And we say and there's no problem, china apparently has got overtures in wanting trade with Canada. And they say look, there's going to be no more interest in criminal penalties for quote pirated things from China. For quote pirated things from China you want to produce some AirPods, you want to produce whatever it is you want to produce over there. We don't care where you got the design from, we're happy to buy it. It'll be much cheaper. So this seems like a great alternative and it is certainly better than the 51st state and certainly better than hoping that we're going to tax US orange juice to bring the US to its knees. That's never going to happen. This seems great and there are two examples of it working and I hope that this is being considered because it's just got great possibility for an asymmetric trade fight with the United States. It's literally their Achilles heel.
Adam Stirling:Michael Mulligan with Mulligan Defense Lawyers, legally speaking. We'll continue right after this, continuing now with Legally Speaking with Michael Mulligan with Mulligan Defense Lawyers. Michael, that was a fascinating topic with intellectual property and how the United States of America is hopelessly dependent upon jurisdictions like Canada enforcing its intellectual property rules to stop us from all just copying a free version of a movie instead of buying it off an American streaming service or similarly, sharing a book or a pharmaceutical patent or something like that. I could certainly see that catching on, especially if the United States decides to impose tariffs on many other nations. What else do we have on the agenda today?
Michael Mulligan:The other case on the agenda today is a tragic one out of Nanaimo. It is an interesting little tidbit on admissibility of expert evidence in a murder case from up there and it's a case that was a first-degree murder charge. It was a woman who was charged with the first-degree murder of her boyfriend and the circumstances of the death were pretty gruesome. She apparently hit him with a hammer while he was asleep, slit his throat and then gutted him like a body of a deer, put him in the freezer and then slowly dismembered his body and disposed of it all over Vancouver Island. So a very gruesome murder and body disposal.
Michael Mulligan:But the issue in the case was whether she was acting in self-defense as an abused partner and Canada has recognized this concept of battered spouse and to allow expert evidence on that to explain why some people who are the victims of spousal violence don't just leave.
Michael Mulligan:Right, because you say, look, even if you just leave, why would you respond by using violence to kill a person? And there is a lot of. There is expert evidence courts have accepted it that in some cases people who are the victims of extended and prolonged spousal abuse don't feel that they're able to do that or conclude that their abusive partner is going to hunt them down and kill them or kill their family or do something else, and so you can have this expanded self-defense. And this case was interesting. The woman effectively confessed to undercover police officers that she had committed the crime undercover police officers that she had committed the crime, but she also, in the course of that, told them about a long history of serious abuse from this man prior to her killing him, including him choking her into unconsciousness and assaulting her with a shovel and threatening to kill her.
Adam Stirling:And then the other interesting element.
Michael Mulligan:This was the expert evidence issue also seriously abusing her cat, and the fellow apparently had on and she told the police about this. Undercover had abused the cat by physically abused it had thrown it against the wall on one occasion, breaking one of its teeth. And the night before the killing she returned home to find the cat in obvious distress, cowering beneath her bed and urinated on the floor, was hissing nonstop and wouldn't feed her kittens, and concluded that this was likely the man abusing the cat and she was extremely concerned about the cat and its well-being. Even in the context of having been arrested for first-degree murder, she was concerned about what's happening to the cat, who's taking care of it, and so the defense wanted to call expert evidence from an expert who was an expert. She was a university professor in sociology from the University of Windsor and an expert on things including intimate partner violence and the mistreatment of domestic pets, including intimate partner violence and the mistreatment of domestic pets, and she published on that and lectured on that, and the evidence that was proposed was to the effect that some people wind up with viewing pets as an extension of themselves and perceive violence and threats to their pet as a violent or threat against themselves and they may perceive that if their pets are at risk of harm or death, they may be next. And so there is an issue about is that kind of evidence admissible in a murder trial? Is that potentially relevant?
Michael Mulligan:Now, the other thing that's interesting about this case is that murder cases in Canada are presumptively tried by a judge and jury, and it used to be. That was mandatory. It's now the case, and it has been for a number of years that you can have a murder trial with a Supreme Court judge alone if both the Crown and the defense agree. If they both agree, fine, they can do that. This was a case where that's what happened. There was an agreement of a judge alone trial, but nonetheless the judge had a voir dire hearing the evidence from this expert about that issue to determine is that evidence which the judge should admit or consider at all?
Michael Mulligan:And courts have an obligation, the judges have an obligation to they refer to it sometimes as sort of the gatekeeper function to make sure that evidence is going to be properly admissible. And one of the tests they reveal is this going to be more prejudicial than it is probative? And you know, in the case of expert evidence, is expert evidence necessary? And you know should an expert be permitted to provide an opinion? Because generally witnesses aren't there to provide opinions. They're there to tell you what did the car look like, not what do you think the person was thinking right, yeah.
Michael Mulligan:And so here the judge heard this evidence, which is quite unique, and concluded that, yes, it does meet that threshold test and the expert evidence in the course of a murder trial involving spousal abuse. It can be important so that there can dispel myths about how a spouse, short or might react in response to being abused. Why didn't you just leave Right, which would be the starting point? People might think, why would you have to kill somebody? It, ultimately, the judge was not persuaded that she was acting in self-defense, but did find that the Crown hadn't proven beyond a reasonable doubt that the killing was planned and deliberate, that instead she had sort of acted, sort of on the spur of the moment that night, deciding to kill him, and so did not convict her of first-degree murder but did convict her of second-degree murder, which has an impact on when parole eligibility might be there. So, anyways, I thought it was an interesting case, both for the issue of admissibility, expert evidence and how the abuse of pets can play into that issue of a battered spouse.
Adam Stirling:Michael Mulligan, with Mulligan Defense Lawyers, legally speaking during the second half of our second hour every Thursday. Michael, thank you, pleasure as always.