March 13, 2025 • 22 mins
A Canadian adult entertainment company faces an $850,000 fine after Health Canada's undercover operation exposed a lucrative scheme selling "natural health products" that secretly contained prescription medication. Michael Mulligan walks us through how MFH International Enterprises marketed pills called "Harmony" and "Passion Femme" as herbal alternatives while charging premium prices of nearly $140 for just 10 tablets. Health Canada's testing revealed these products contained triple doses of erectile dysfunction medications - putting unwitting consumers at serious risk, especially those with heart conditions.
The case raises alarming questions about consumer safety in the natural health product market. As Mulligan points out, "Not everything natural is necessarily good for you," noting that even legitimately natural ingredients with exotic names like "horny goat weed" and "tomcat" deserve scrutiny. The court's substantial fine was carefully calculated to exceed the company's profits while remaining collectible over five years - though Mulligan questions whether corporate shell games might ultimately prevent full payment.
The episode also examines a sobering reality about Canada's "not criminally responsible" verdicts. A man found NCR in 2012 for criminal harassment and uttering threats - offences that typically wouldn't result in lengthy prison terms - has now spent twelve years under involuntary psychiatric detention. His case starkly illustrates how NCR findings can lead to indefinite confinement rather than the "get out of jail free card" commonly assumed by the public.
Closing with an analysis of British Columbia's proposed Economic Stabilization Act, Mulligan warns about delegating sweeping regulatory powers that bypass legislative debate. The bill would allow the government to rapidly impose tolls, fees, and restrictions through regulation alone - potentially creating chaotic policy shifts similar to what we've seen with international tariffs. While quick responses to economic challenges are appealing, Mulligan cautions that such broad authority demands careful consideration: "We should slow down... if you grant sweeping powers to do things which could seriously impact people's lives and livelihoods, sometimes you're going to cause serious harm."
Note: Legally Speaking With Michael Mulligan is now live on CFAX 1070 at 12:30 pm rather than 10:30 am every Thursday.
Follow this link for a transcript of the show and links to the cases discussed.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Adam Stirling (00:00):
Time for our regularly scheduled albeit two
hours later than normal becausethe show is two hours later than
normal segment with MichaelMulligan from Mulligan Defence
Lawyers.
It's Legally Speaking here onCFAX 1070.
Good afternoon, Michael.
How are we doing?
Michael Mulligan (00:13):
Hey, good afternoon.
I'm doing great, always good tobe here at a slightly different
time.
Adam Stirling (00:18):
Absolutely Some interesting items on the agenda
today.
I'm looking at the first one.
It says Sentencing a companyfor selling a natural health
product that contained does thatsay prescription sexual
dysfunction medication?
What's going on?
Michael Mulligan (00:32):
Apparently a lucrative enterprise.
So this is interesting for anumber of reasons.
First of all, it was aprosecution of a corporation
like a collection of four storesover in Vancouver.
A corporation like a collectionof four stores over in
Vancouver.
It was a entity, mfhInternational Enterprises
(00:54):
Incorporated, which doesn'treally shed a whole lot of light
on what that might be, but it'sdescribed as a company that
sold adult products, so you canprobably figure out what that
might entail.
Indeed here, the four storesare located in Burnaby, richmond
and Vancouver.
They all sell adultentertainment products.
Now, the particular things herewere being sold and marketed
(01:18):
under two different names, onecalled Harmony and the other
called Passion Femme, and theywere both described as natural
health products and they werepurported to be a natural,
herbal alternative to otherthings like erectile dysfunction
(01:41):
medication, like erectiledysfunction medication and the
product described as Harmony.
The background of that was thatthis company had apparently
bought it in bulk like a bigpile of powder and then hired
another company to turn it orput it into pill format and then
(02:02):
was selling it in these stores,describing them as natural
products.
Now we do have in Canada a Foodand Drug Act and under that one
of the things that is supposedto be done is to get approval
from Health Canada before you'reselling things like drugs or
supplements or various otherbits and pieces, but they have
(02:24):
different regimes andrequirements If somebody is
selling something which containsquote natural things as opposed
to things which may have otherchemicals in them.
Now I should pause for a momenthere to say not everything
that's natural is necessarilygood for you.
You know, arsenic is naturallyoccurring.
You probably don't want a lotof that in your pills, but this
(02:48):
particular case it wasn'tarsenic.
What happened is, as result ofsome sort of a report, health
Canada decided to conduct anundercover operation.
I'm not sure how much HealthCanada is doing undercover
operations, but in this case,undercover operations.
But in this case they had anemployee go in an undercover way
(03:10):
to one of these adult productstores and purchase some of this
Harmony.
They were sold out, in fact,when the person got there, so
they had to order it onbackorder.
But they came and got it and itwas like $130, some odd dollars
for 10 pills.
And they analyzed the pills andit turned out that the pills
contained I think it's Cialis,the active ingredient in an
(03:33):
erectile dysfunction medication,and, troublingly, three times
the amount that would be in apill of that Cialis medication,
of that Cialis medication.
And the other product, thePassion Femme, which was being
promoted as a product for women,had actually been previously
identified by Health Canada ascontaining the active ingredient
(03:57):
in a different erecta viagra,and it had been pulled from the
market, but they were stillselling it, and so this resulted
in a prosecution, interestingly, of the corporation.
Now you can prosecute companiesfor things, and that's what
they were doing here.
The person who showed up torepresent the company was the
(04:18):
person, the operating mind.
He managed it, ran it, althoughthe company and its only
director was his wife, who hadnothing to do with the company's
operation at all, apparentlyother than being the owner and
the director of it.
And the case turned on.
Ultimately there's a trialwhether the Crown was able to
prove knowledge of this companyabout what it was that they were
(04:41):
selling, right.
Did they know that they wereselling things which, in the
languages, was reckless as towhether it could cause a serious
risk of injury to human health?
And there was no directevidence of that.
The fellow who's the operatingmind denied it.
He claimed that some otherperson with the same last name
but a different first name, gary, by the way.
(05:01):
He claimed that this Garyperson was the one who got this
stuff certified.
He didn't know anything aboutit being a problem.
He was just buying it from thisreputable Gary fellow and had
it put into pill format and hewas none the wiser.
How could he possibly know whatwas in the pills?
The judge rejected thatresoundingly, and one of the
(05:23):
interesting pieces of evidencethat was pointed to was just
exactly how much he was sellingthese pills for.
The 10 pills sold for $139.99.
And, as the judge astutelypointed out, various other quote
natural health products whichare sold for the purpose of, you
know, helping sexual function,sold for a fraction of that, and
(05:47):
so part of the evidence therewas the fact that you're selling
it for like 10 times or morethan what things that just
contain various herbalingredients sell for was an
indication of an awareness thatthere's something more in this
than herbal ingredients.
Now, I should say,interestingly, the judge does
point out some of the commonherbal ingredients that are in
(06:08):
quote natural, close quoteproducts that are intended to
help with sexual function.
Some of those products naturalproducts include things named
well, some of them you might befamiliar with, like ginseng, but
there are other ones, includingthings.
One is horny goat weed andanother herb called tomcat.
I'm not sure how much hornygoatweed somebody should be
(06:28):
eating or whether eatingsomething called tomcat would
necessarily be a great idea.
But there was something clearlymore here, because of how much
it stood for, and boy did theysell briskly.
They sold a lot of it andUltimately the judge convicted
the corporation of knowingly,recklessly endangering people,
(06:50):
although not guilty of knowinglycausing serious harm.
There was some doubt about, atleast in the judge's mind, about
whether there was knowledge ofthe specific risk that is run by
these products, knowledge ofthe specific risk that is run by
these products.
And the concern would be here,and there was expert evidence
about this from a fellow who wasnamed, unfortunately, dr Ho,
(07:19):
which I don't know if anyone isfamiliar with TV ads and
products for medical purposesmight be familiar with the Dr Ho
machine, but apparently norelation Interesting.
So a different.
Adam Stirling (07:24):
Dr, Ho.
Michael Mulligan (07:25):
Okay, a completely different.
Dr Ho testified for the Crownand there was evidence that, in
fact, these drugs could beseriously harmful.
For example, if somebody had,like, a cardiac condition, you
probably shouldn't be taking atriple dose of Viagra, for
example.
And of course, people buyingthese things, even though they
seem very keen on buying themfor a lot of money, would not
(07:47):
necessarily know what was inthem.
They couldn't make an informedjudgment about what they were
taking and, at least for somepeople, there could be a serious
risk of harm.
So there's a conviction, whichthen leads to the question of
well, what's the punishment?
You're not putting a company injail.
It's ultimately a piece of paper.
And so what do you do with this?
(08:11):
And the Crown sought a finealong with a period of probation
for the company.
Now again, the company's notreporting to the probation
officer, but it would put somerestrictions on what the company
could do, and the judgeultimately did that.
The judge ultimately imposed avery significant fine, and the
way the judge calculated it waslooking at like the amount of
profit that was made by thecompany and to make sure that
(08:39):
you'd have deterrence for otherpeople in the future, you'd want
to have a quantum of a finewhich is enough.
That is more than the money youcould make by selling
mislabeled products to people.
Weighed against, that the judgehad to take into account this
wasn't a big company.
They only had four stores, andif you fined it too much you
would just put the thing out ofbusiness potentially.
And so the judge imposed a fineof on some of the accounts,
(09:02):
$800,000.
On another account, $50,000.
On some of the counts,$800,000,.
On another count, $50,000, andthen provided that the fine be
payable over a period of fiveyears.
And so one of the things we'llhave to wait and see is whether
the fine gets collected.
(09:22):
The judge also ordered that asign be put up giving notice to
anyone who might come back tothe stores about what was in
these pills.
But we'll have to wait and seewhether the fine becomes
collectible.
One of the things I recall fromearly in my career involved I
started out to very early dayswith the Department of Justice
over in Vancouver and one of thethings that they would
(09:43):
prosecute they would have likeundercover operations for stores
selling cigarettes and theywould literally send in underage
kids to small corner stores tosee if they could buy one loose
cigarette which you can't selland certainly shouldn't sell a
loose cigarette to kids and thenthey would prosecute them on
some occasions.
Be you know, abc Corner StoreInc would suddenly go out of
(10:11):
business and be replaced withDEF Corner Store Inc.
That happens to be owned by thewife of the person who was
previously prosecuted, and so itlooks very similar to the other
store.
Yeah, that's right, and so Idon't know whether we're going
to see the $800,000 from MFH orwhether it will turn into some
other slight variation of thatalso owned by the person's wife,
(10:32):
although they seem tovigorously defend it.
One of the reasons why thestore had made less money than
it had been is they spent$250,000 on legal fees defending
this case.
That went on for, I think, 14days, and so it was vigorously
defended, and so maybe there aresome assets there that could be
collected upon, or maybethere's just really good, you
(10:53):
know, goodwill from all thesepeople that were buying this
dysfunction medication marketedas an herbal supplement, but at
least it was detected, and Iguess the takeaway I got from
all of this and reading all ofthis and this decision, was be
very careful in terms of whatyou're relying upon.
When you have representationsmade about things being natural
(11:15):
or what's in them or having themapproved by Health Canada, that
may or may not be accurate.
The information that's providedto Health Canada may or may not
be accurate, and even at theend of the day, if it turns out
that you know there wasn't somedrug slipped into the pills, you
know you've got to think verycarefully about how much horny
goat weed or tomcat you want tobe eating, and so I guess, at
(11:38):
the end of the day, in additionto being interesting in terms of
the prosecution, what was there, I do think the case is a
little bit of a cautionary talefor people that might be
thinking oh yes, it says it's anherbal remedy.
That must be fine.
It may be, but unless there wasreal diligence and testing and
so on that occurred, like inthis case, you may be eating
things that don't live up to thesign on the wall or what's
(12:02):
printed on the package.
So that's the latest on theprosecution for dysfunction
medication not quite so herbal.
Adam Stirling (12:09):
Michael Mulligan with Mulligan Defense Lawyers.
Legally Speaking will continueright after this.
Legally Speaking continues onCFAX 1070 with Michael Mulligan,
barrister and solicitor.
With Mulligan Defence Lawyers.
Michael, a topic you and I havediscussed in various forms at
great length over the years thephenomenon of involuntary care
and a person being found notcriminally responsible due to a
(12:31):
mental disorder, and why thepublic's perception of that is
not always in alignment with thereality and this is a
fascinating case of a man who'sbeen in care am I reading this
correctly since 2012?
.
Michael Mulligan (12:39):
the public's perception of that is not always
in alignment with the realityand this is a fascinating case
of a man who's been in care am Ireading this correctly since
2012?
That's right, and you'reexactly right in terms of that
perception.
Right, that concept of notcriminally responsible as a
result of a mental disorder issomething which we have in
Canadian law.
Right, if you have a person whocan't understand the sort of
nature or quality of whatthey're doing, or whether they
(13:01):
can't determine that it's wrong.
You know, if a person thinksthey're fighting off a dragon,
when they're, you know, hittingsomebody, we don't convict them
of a crime and put them inprison, but they can be subject
to orders under the you can besubject to involuntary and
indefinite detention in ahospital, and so this is a case
(13:25):
from 2012, which was a man whowas charged with two counts of
criminal harassment and utteringthreats, and so, of course,
neither of those are good thingsto be doing, but they are not,
except in the most extremecircumstances, going to wind you
up in prison for decades.
You know, it's the sort ofthing and this man who was found
(13:46):
not criminally responsible as aresult of a mental disorder for
those offenses all the way backin 2012, and he remains subject
to control and involuntaryincarceration, and the reason
for that is that once somebodyis determined to be not
criminally responsible as amental, as a result of a mental
(14:07):
disorder, they then are going tobe subject to either conditions
or, in some cases, arequirement to be just detained
in a forensic hospital, or, insome cases, a requirement to be
just detained in a forensichospital unless a review board
determines that they don't posea significant risk to public
safety.
And if they're not satisfied ofthat, you never get out.
And so this particular man isdescribed as suffering from a
(14:31):
severe psychoaffective disorderwhich is resistant to treatment,
combined with and this is alltoo common a substance use
disorder.
This would describe many of thepeople who are living on the
street using fentanyl.
It's a combination of mentalhealth and drug use, some effort
to treat themselves or whateverthat makes it just so much
(14:52):
worse and so much harder to getto the bottom of.
This man is described ascontinuing to have, as of 2024,
bizarre, delusional beliefs, noinsight into his mental illness
and a belief that anti-psychoticmedication was hurting him.
And so, as a result of thatstate of affairs, probably
understandably and this wasn't,I don't think, really challenged
(15:14):
in a meaningful way the reviewboard concluded that he was
still posed a significant threatto public safety, and so he,
this man, has been sort offighting and appealing review
board decisions all the way backfrom 2012.
And the latest was went to theCourt of Appeal, and the Court
of Appeal found no review boarddid exactly what they should be
(15:36):
doing.
There's nothing pointed to hereas to why that decision was in
error, and so they upheld it,and so I think the reason why it
was worth pointing out is whenpeople hear about those
decisions and there's a recentone on the island involving a
man who was found not criminallyresponsible as a result of a
mental disorder who killed hismother right, yeah, certainly,
(15:59):
in cases like that, thealternative would have been, you
know, potentially life inprison, right, yes, but you also
can have people found notcriminally responsible for much
less serious offenses, likecriminal harassment or
threatening somebody, and theactual result for them, if the
review board is not persuadedthat public safety can be
(16:20):
adequately addressed, is again,effectively, life not in prison,
but life in a secure forensicpsychiatric hospital, and that's
what this man has discovered,and so people should be aware of
that.
When you see that kind ofdecision, it is not a decision.
That means go ahead or somekind of a free pass.
It means potentially you'regoing nowhere unless there's a
(16:45):
determination made that youdon't pose a risk to the public.
I also thought it might beworth calling a bit of an
audible here.
I was reading during the break,starting to read that Bill 7
that was being discussedpreviously, that Economic
Stabilization, terror ResponseAct and just what that permits,
(17:06):
and it's very broad, which Ithink is in keeping with some of
the concerns you expressedabout it.
Right, it has severalcategories of things that the
government would be able to makeregulations about.
Right, and a regulation is justa law that doesn't get passed
through the legislature.
It becomes law by theLieutenant Governor and Council,
and so one of the categorieshere is designed to or intended
(17:32):
to remove barriers for the saleof goods and services from other
provinces.
That, to the extent that it'sdoing that, I don't think is
going to be a grave concern.
It has to do with things like,you know, packaging requirements
and what can be sold in BritishColumbia, and so you can
imagine regulations under thatheading doing things like that.
You know saying, okay, well,fine, you can sell your
(17:54):
fill-in-the-blank product herewithout the.
You know, whatever the BCrequirement might ordinarily be,
that would amount effectivelyto a trade barrier, right?
And that's often how thosethings play out, right?
You create a requirement inQuebec that the French labeling
be larger than English labeling,and suddenly you can't import
anything there without a newlabel, and that just means it's
(18:14):
not happening, right.
And so that's that part of it.
One of the provisions here,though, that is extremely broad
it's in part three of the billis one that provides very
sweeping powers to impose tolls,fees, fines and so on with
respect to the use of things inBritish Columbia, and it's very
(18:38):
broad.
It would include, it seems, tocontemplate fees, fines and so
on being put on vehicles orother things of that sort, and
there was some talk about thatin terms of the government
contemplating trying to chargefees to commercial vehicles that
wanted to get to Alaska fordriving through British Columbia
(19:02):
, and so it would appear thatthis piece of legislation, if
passed, would allow those kindsof things to be done by
regulation, and so I guess.
A few comments about that.
First of all, that's certainlyfast, right.
On the other hand, you're notgoing to have the sort of debate
(19:23):
that would ordinarily accompanythat, if you wish to add some
new effectively tax to something.
And so you know, people couldagree or disagree about whether
it's a good idea to try taxingtrucks to try to get onto the
Alaska Highway which, frankly,the Americans built, whether
that's a good idea or not, orwhat the response to that might
(19:45):
be, but it would seem to me wisethat there be at least a debate
about that.
Right, you know the it's not.
You see, in the Trump tariffsare coming on the sort of you
know chaotic nature of thingsthat can be done when they can
be done effectively by fiat.
Adam Stirling (20:02):
Yes.
Michael Mulligan (20:03):
As opposed to being done by passive
legislation.
You would not see tariffs areon, tariffs are off, tariffs are
doubled, tariffs are in half.
That would not happen if theywere being imposed by
legislative action.
You would have considerationbeing given, debate about it,
and so on.
And so, while I understand thedesire for speed, it does seem
(20:25):
to me that there is lots ofmerit in the idea of having
actual debate about some ofthese things and slowing down
just a little bit.
And when you look at what kindof powers this would delegate,
the language that they used isextremely broad, you know.
It allows, for example, sort ofregulation about things like,
(20:48):
you know, ownership orregistration of vehicles, what
kind of vehicle somebody mightbe able to own, what you might
be able to do with it, can youdrive it on the road, you know,
and who could own something, orfees that might be attached to
owning or using something.
And so you know, we can allimagine good or sensible things
you might do with very, verybroad powers like that.
(21:10):
But on the other hand, you dosee examples of government doing
things which in retrospect youmay think that seemed a little
extreme.
And this is very broad, and soI think we ought to be very
careful before we delegate apower that you hope would be
used well, but, as we're seeing,for example, with exactly what
Trump is doing, can be usedcapriciously or in a way that
(21:31):
causes serious harm, and so mycounsel would be we should slow
down and, while governments liketo talk tough and be able to
say things for political andother reasons, some of these
decisions are important andlarge, and if you grant sweeping
powers to do things which couldseriously impact people's lives
(21:52):
and livelihoods, sometimesyou're going to cause serious
harm, and so I would urge peopleto think carefully about this,
know that this is extremelybroad and, if this is passed,
you're delegating authoritywhich could be used in a
capricious or harmful way.
Hopefully it isn't, but that'swhat this legislation would
purport to do.
Adam Stirling (22:09):
Michael Mulligan, with Mulligan Defence Lawyers,
legally speaking during thesecond half of our second hour
every Thursday.
Michael, thank you so much.
Pleasure as always, Thanks.
Time for our regularly scheduled albeit two
hours later than normal becausethe show is two hours later than
normal segment with MichaelMulligan from Mulligan Defence
Lawyers.
It's Legally Speaking here onCFAX 1070.
Good afternoon, Michael.
How are we doing?
Michael Mulligan (00:13):
Hey, good afternoon.
I'm doing great, always good tobe here at a slightly different
time.
Adam Stirling (00:18):
Absolutely Some interesting items on the agenda
today.
I'm looking at the first one.
It says Sentencing a companyfor selling a natural health
product that contained does thatsay prescription sexual
dysfunction medication?
What's going on?
Michael Mulligan (00:32):
Apparently a lucrative enterprise.
So this is interesting for anumber of reasons.
First of all, it was aprosecution of a corporation
like a collection of four storesover in Vancouver.
A corporation like a collectionof four stores over in
Vancouver.
It was a entity, mfhInternational Enterprises
(00:54):
Incorporated, which doesn'treally shed a whole lot of light
on what that might be, but it'sdescribed as a company that
sold adult products, so you canprobably figure out what that
might entail.
Indeed here, the four storesare located in Burnaby, richmond
and Vancouver.
They all sell adultentertainment products.
Now, the particular things herewere being sold and marketed
(01:18):
under two different names, onecalled Harmony and the other
called Passion Femme, and theywere both described as natural
health products and they werepurported to be a natural,
herbal alternative to otherthings like erectile dysfunction
(01:41):
medication, like erectiledysfunction medication and the
product described as Harmony.
The background of that was thatthis company had apparently
bought it in bulk like a bigpile of powder and then hired
another company to turn it orput it into pill format and then
(02:02):
was selling it in these stores,describing them as natural
products.
Now we do have in Canada a Foodand Drug Act and under that one
of the things that is supposedto be done is to get approval
from Health Canada before you'reselling things like drugs or
supplements or various otherbits and pieces, but they have
(02:24):
different regimes andrequirements If somebody is
selling something which containsquote natural things as opposed
to things which may have otherchemicals in them.
Now I should pause for a momenthere to say not everything
that's natural is necessarilygood for you.
You know, arsenic is naturallyoccurring.
You probably don't want a lotof that in your pills, but this
(02:48):
particular case it wasn'tarsenic.
What happened is, as result ofsome sort of a report, health
Canada decided to conduct anundercover operation.
I'm not sure how much HealthCanada is doing undercover
operations, but in this case,undercover operations.
But in this case they had anemployee go in an undercover way
(03:10):
to one of these adult productstores and purchase some of this
Harmony.
They were sold out, in fact,when the person got there, so
they had to order it onbackorder.
But they came and got it and itwas like $130, some odd dollars
for 10 pills.
And they analyzed the pills andit turned out that the pills
contained I think it's Cialis,the active ingredient in an
(03:33):
erectile dysfunction medication,and, troublingly, three times
the amount that would be in apill of that Cialis medication,
of that Cialis medication.
And the other product, thePassion Femme, which was being
promoted as a product for women,had actually been previously
identified by Health Canada ascontaining the active ingredient
(03:57):
in a different erecta viagra,and it had been pulled from the
market, but they were stillselling it, and so this resulted
in a prosecution, interestingly, of the corporation.
Now you can prosecute companiesfor things, and that's what
they were doing here.
The person who showed up torepresent the company was the
(04:18):
person, the operating mind.
He managed it, ran it, althoughthe company and its only
director was his wife, who hadnothing to do with the company's
operation at all, apparentlyother than being the owner and
the director of it.
And the case turned on.
Ultimately there's a trialwhether the Crown was able to
prove knowledge of this companyabout what it was that they were
(04:41):
selling, right.
Did they know that they wereselling things which, in the
languages, was reckless as towhether it could cause a serious
risk of injury to human health?
And there was no directevidence of that.
The fellow who's the operatingmind denied it.
He claimed that some otherperson with the same last name
but a different first name, gary, by the way.
(05:01):
He claimed that this Garyperson was the one who got this
stuff certified.
He didn't know anything aboutit being a problem.
He was just buying it from thisreputable Gary fellow and had
it put into pill format and hewas none the wiser.
How could he possibly know whatwas in the pills?
The judge rejected thatresoundingly, and one of the
(05:23):
interesting pieces of evidencethat was pointed to was just
exactly how much he was sellingthese pills for.
The 10 pills sold for $139.99.
And, as the judge astutelypointed out, various other quote
natural health products whichare sold for the purpose of, you
know, helping sexual function,sold for a fraction of that, and
(05:47):
so part of the evidence therewas the fact that you're selling
it for like 10 times or morethan what things that just
contain various herbalingredients sell for was an
indication of an awareness thatthere's something more in this
than herbal ingredients.
Now, I should say,interestingly, the judge does
point out some of the commonherbal ingredients that are in
(06:08):
quote natural, close quoteproducts that are intended to
help with sexual function.
Some of those products naturalproducts include things named
well, some of them you might befamiliar with, like ginseng, but
there are other ones, includingthings.
One is horny goat weed andanother herb called tomcat.
I'm not sure how much hornygoatweed somebody should be
(06:28):
eating or whether eatingsomething called tomcat would
necessarily be a great idea.
But there was something clearlymore here, because of how much
it stood for, and boy did theysell briskly.
They sold a lot of it andUltimately the judge convicted
the corporation of knowingly,recklessly endangering people,
(06:50):
although not guilty of knowinglycausing serious harm.
There was some doubt about, atleast in the judge's mind, about
whether there was knowledge ofthe specific risk that is run by
these products, knowledge ofthe specific risk that is run by
these products.
And the concern would be here,and there was expert evidence
about this from a fellow who wasnamed, unfortunately, dr Ho,
(07:19):
which I don't know if anyone isfamiliar with TV ads and
products for medical purposesmight be familiar with the Dr Ho
machine, but apparently norelation Interesting.
So a different.
Adam Stirling (07:24):
Dr, Ho.
Michael Mulligan (07:25):
Okay, a completely different.
Dr Ho testified for the Crownand there was evidence that, in
fact, these drugs could beseriously harmful.
For example, if somebody had,like, a cardiac condition, you
probably shouldn't be taking atriple dose of Viagra, for
example.
And of course, people buyingthese things, even though they
seem very keen on buying themfor a lot of money, would not
(07:47):
necessarily know what was inthem.
They couldn't make an informedjudgment about what they were
taking and, at least for somepeople, there could be a serious
risk of harm.
So there's a conviction, whichthen leads to the question of
well, what's the punishment?
You're not putting a company injail.
It's ultimately a piece of paper.
And so what do you do with this?
(08:11):
And the Crown sought a finealong with a period of probation
for the company.
Now again, the company's notreporting to the probation
officer, but it would put somerestrictions on what the company
could do, and the judgeultimately did that.
The judge ultimately imposed avery significant fine, and the
way the judge calculated it waslooking at like the amount of
profit that was made by thecompany and to make sure that
(08:39):
you'd have deterrence for otherpeople in the future, you'd want
to have a quantum of a finewhich is enough.
That is more than the money youcould make by selling
mislabeled products to people.
Weighed against, that the judgehad to take into account this
wasn't a big company.
They only had four stores, andif you fined it too much you
would just put the thing out ofbusiness potentially.
And so the judge imposed a fineof on some of the accounts,
(09:02):
$800,000.
On another account, $50,000.
On some of the counts,$800,000,.
On another count, $50,000, andthen provided that the fine be
payable over a period of fiveyears.
And so one of the things we'llhave to wait and see is whether
the fine gets collected.
(09:22):
The judge also ordered that asign be put up giving notice to
anyone who might come back tothe stores about what was in
these pills.
But we'll have to wait and seewhether the fine becomes
collectible.
One of the things I recall fromearly in my career involved I
started out to very early dayswith the Department of Justice
over in Vancouver and one of thethings that they would
(09:43):
prosecute they would have likeundercover operations for stores
selling cigarettes and theywould literally send in underage
kids to small corner stores tosee if they could buy one loose
cigarette which you can't selland certainly shouldn't sell a
loose cigarette to kids and thenthey would prosecute them on
some occasions.
Be you know, abc Corner StoreInc would suddenly go out of
(10:11):
business and be replaced withDEF Corner Store Inc.
That happens to be owned by thewife of the person who was
previously prosecuted, and so itlooks very similar to the other
store.
Yeah, that's right, and so Idon't know whether we're going
to see the $800,000 from MFH orwhether it will turn into some
other slight variation of thatalso owned by the person's wife,
(10:32):
although they seem tovigorously defend it.
One of the reasons why thestore had made less money than
it had been is they spent$250,000 on legal fees defending
this case.
That went on for, I think, 14days, and so it was vigorously
defended, and so maybe there aresome assets there that could be
collected upon, or maybethere's just really good, you
(10:53):
know, goodwill from all thesepeople that were buying this
dysfunction medication marketedas an herbal supplement, but at
least it was detected, and Iguess the takeaway I got from
all of this and reading all ofthis and this decision, was be
very careful in terms of whatyou're relying upon.
When you have representationsmade about things being natural
(11:15):
or what's in them or having themapproved by Health Canada, that
may or may not be accurate.
The information that's providedto Health Canada may or may not
be accurate, and even at theend of the day, if it turns out
that you know there wasn't somedrug slipped into the pills, you
know you've got to think verycarefully about how much horny
goat weed or tomcat you want tobe eating, and so I guess, at
(11:38):
the end of the day, in additionto being interesting in terms of
the prosecution, what was there, I do think the case is a
little bit of a cautionary talefor people that might be
thinking oh yes, it says it's anherbal remedy.
That must be fine.
It may be, but unless there wasreal diligence and testing and
so on that occurred, like inthis case, you may be eating
things that don't live up to thesign on the wall or what's
(12:02):
printed on the package.
So that's the latest on theprosecution for dysfunction
medication not quite so herbal.
Adam Stirling (12:09):
Michael Mulligan with Mulligan Defense Lawyers.
Legally Speaking will continueright after this.
Legally Speaking continues onCFAX 1070 with Michael Mulligan,
barrister and solicitor.
With Mulligan Defence Lawyers.
Michael, a topic you and I havediscussed in various forms at
great length over the years thephenomenon of involuntary care
and a person being found notcriminally responsible due to a
(12:31):
mental disorder, and why thepublic's perception of that is
not always in alignment with thereality and this is a
fascinating case of a man who'sbeen in care am I reading this
correctly since 2012?
.
Michael Mulligan (12:39):
the public's perception of that is not always
in alignment with the realityand this is a fascinating case
of a man who's been in care am Ireading this correctly since
2012?
That's right, and you'reexactly right in terms of that
perception.
Right, that concept of notcriminally responsible as a
result of a mental disorder issomething which we have in
Canadian law.
Right, if you have a person whocan't understand the sort of
nature or quality of whatthey're doing, or whether they
(13:01):
can't determine that it's wrong.
You know, if a person thinksthey're fighting off a dragon,
when they're, you know, hittingsomebody, we don't convict them
of a crime and put them inprison, but they can be subject
to orders under the you can besubject to involuntary and
indefinite detention in ahospital, and so this is a case
(13:25):
from 2012, which was a man whowas charged with two counts of
criminal harassment and utteringthreats, and so, of course,
neither of those are good thingsto be doing, but they are not,
except in the most extremecircumstances, going to wind you
up in prison for decades.
You know, it's the sort ofthing and this man who was found
(13:46):
not criminally responsible as aresult of a mental disorder for
those offenses all the way backin 2012, and he remains subject
to control and involuntaryincarceration, and the reason
for that is that once somebodyis determined to be not
criminally responsible as amental, as a result of a mental
(14:07):
disorder, they then are going tobe subject to either conditions
or, in some cases, arequirement to be just detained
in a forensic hospital, or, insome cases, a requirement to be
just detained in a forensichospital unless a review board
determines that they don't posea significant risk to public
safety.
And if they're not satisfied ofthat, you never get out.
And so this particular man isdescribed as suffering from a
(14:31):
severe psychoaffective disorderwhich is resistant to treatment,
combined with and this is alltoo common a substance use
disorder.
This would describe many of thepeople who are living on the
street using fentanyl.
It's a combination of mentalhealth and drug use, some effort
to treat themselves or whateverthat makes it just so much
(14:52):
worse and so much harder to getto the bottom of.
This man is described ascontinuing to have, as of 2024,
bizarre, delusional beliefs, noinsight into his mental illness
and a belief that anti-psychoticmedication was hurting him.
And so, as a result of thatstate of affairs, probably
understandably and this wasn't,I don't think, really challenged
(15:14):
in a meaningful way the reviewboard concluded that he was
still posed a significant threatto public safety, and so he,
this man, has been sort offighting and appealing review
board decisions all the way backfrom 2012.
And the latest was went to theCourt of Appeal, and the Court
of Appeal found no review boarddid exactly what they should be
(15:36):
doing.
There's nothing pointed to hereas to why that decision was in
error, and so they upheld it,and so I think the reason why it
was worth pointing out is whenpeople hear about those
decisions and there's a recentone on the island involving a
man who was found not criminallyresponsible as a result of a
mental disorder who killed hismother right, yeah, certainly,
(15:59):
in cases like that, thealternative would have been, you
know, potentially life inprison, right, yes, but you also
can have people found notcriminally responsible for much
less serious offenses, likecriminal harassment or
threatening somebody, and theactual result for them, if the
review board is not persuadedthat public safety can be
(16:20):
adequately addressed, is again,effectively, life not in prison,
but life in a secure forensicpsychiatric hospital, and that's
what this man has discovered,and so people should be aware of
that.
When you see that kind ofdecision, it is not a decision.
That means go ahead or somekind of a free pass.
It means potentially you'regoing nowhere unless there's a
(16:45):
determination made that youdon't pose a risk to the public.
I also thought it might beworth calling a bit of an
audible here.
I was reading during the break,starting to read that Bill 7
that was being discussedpreviously, that Economic
Stabilization, terror ResponseAct and just what that permits,
(17:06):
and it's very broad, which Ithink is in keeping with some of
the concerns you expressedabout it.
Right, it has severalcategories of things that the
government would be able to makeregulations about.
Right, and a regulation is justa law that doesn't get passed
through the legislature.
It becomes law by theLieutenant Governor and Council,
and so one of the categorieshere is designed to or intended
(17:32):
to remove barriers for the saleof goods and services from other
provinces.
That, to the extent that it'sdoing that, I don't think is
going to be a grave concern.
It has to do with things like,you know, packaging requirements
and what can be sold in BritishColumbia, and so you can
imagine regulations under thatheading doing things like that.
You know saying, okay, well,fine, you can sell your
(17:54):
fill-in-the-blank product herewithout the.
You know, whatever the BCrequirement might ordinarily be,
that would amount effectivelyto a trade barrier, right?
And that's often how thosethings play out, right?
You create a requirement inQuebec that the French labeling
be larger than English labeling,and suddenly you can't import
anything there without a newlabel, and that just means it's
(18:14):
not happening, right.
And so that's that part of it.
One of the provisions here,though, that is extremely broad
it's in part three of the billis one that provides very
sweeping powers to impose tolls,fees, fines and so on with
respect to the use of things inBritish Columbia, and it's very
(18:38):
broad.
It would include, it seems, tocontemplate fees, fines and so
on being put on vehicles orother things of that sort, and
there was some talk about thatin terms of the government
contemplating trying to chargefees to commercial vehicles that
wanted to get to Alaska fordriving through British Columbia
(19:02):
, and so it would appear thatthis piece of legislation, if
passed, would allow those kindsof things to be done by
regulation, and so I guess.
A few comments about that.
First of all, that's certainlyfast, right.
On the other hand, you're notgoing to have the sort of debate
(19:23):
that would ordinarily accompanythat, if you wish to add some
new effectively tax to something.
And so you know, people couldagree or disagree about whether
it's a good idea to try taxingtrucks to try to get onto the
Alaska Highway which, frankly,the Americans built, whether
that's a good idea or not, orwhat the response to that might
(19:45):
be, but it would seem to me wisethat there be at least a debate
about that.
Right, you know the it's not.
You see, in the Trump tariffsare coming on the sort of you
know chaotic nature of thingsthat can be done when they can
be done effectively by fiat.
Adam Stirling (20:02):
Yes.
Michael Mulligan (20:03):
As opposed to being done by passive
legislation.
You would not see tariffs areon, tariffs are off, tariffs are
doubled, tariffs are in half.
That would not happen if theywere being imposed by
legislative action.
You would have considerationbeing given, debate about it,
and so on.
And so, while I understand thedesire for speed, it does seem
(20:25):
to me that there is lots ofmerit in the idea of having
actual debate about some ofthese things and slowing down
just a little bit.
And when you look at what kindof powers this would delegate,
the language that they used isextremely broad, you know.
It allows, for example, sort ofregulation about things like,
(20:48):
you know, ownership orregistration of vehicles, what
kind of vehicle somebody mightbe able to own, what you might
be able to do with it, can youdrive it on the road, you know,
and who could own something, orfees that might be attached to
owning or using something.
And so you know, we can allimagine good or sensible things
you might do with very, verybroad powers like that.
(21:10):
But on the other hand, you dosee examples of government doing
things which in retrospect youmay think that seemed a little
extreme.
And this is very broad, and soI think we ought to be very
careful before we delegate apower that you hope would be
used well, but, as we're seeing,for example, with exactly what
Trump is doing, can be usedcapriciously or in a way that
(21:31):
causes serious harm, and so mycounsel would be we should slow
down and, while governments liketo talk tough and be able to
say things for political andother reasons, some of these
decisions are important andlarge, and if you grant sweeping
powers to do things which couldseriously impact people's lives
(21:52):
and livelihoods, sometimesyou're going to cause serious
harm, and so I would urge peopleto think carefully about this,
know that this is extremelybroad and, if this is passed,
you're delegating authoritywhich could be used in a
capricious or harmful way.
Hopefully it isn't, but that'swhat this legislation would
purport to do.
Adam Stirling (22:09):
Michael Mulligan, with Mulligan Defence Lawyers,
legally speaking during thesecond half of our second hour
every Thursday.
Michael, thank you so much.
Pleasure as always, Thanks.
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