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. 

Episode Transcript

Adam Stirling (00:00):
It's time for our regular segment, legally
speaking, joined as always withMichael Mulligan, Barrister and
Solicitor, with Mulligan DefenceLawyers.
Morning Michael.
How are we doing?
Hey, I'm doing great.
Always good to be here.
Some interesting things on theagenda.
Where shall we start this week?

Michael Mulligan (00:14):
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 threatsby Donald Trump to impose
tariffs on Canadian goodsentering the United States and
what the Canadian response tothat might be.
And there's a very interestinglegal angle on all of that which

(00:36):
I don't know has received muchconsideration or coverage at
this point.
To this point, and one of thethings which is going on right
now today is a meeting ofpremiers and federal officials
talking about what retaliatorytariffs Canada might impose on
the United States in response ifDonald Trump does what he is

(00:57):
threatening to do, and sothey're drawing up a list of,
like you know, orange juice oryou know things like Harley
Davidson motorcycles and youknow US liquor, and various
things which Canada might imposetariffs on in response.
Now, a tariff, of course, is atax imposed on goods imported

(01:17):
into the country, and everycountry's free to do that, and
the idea is that it might punishthe other country by increasing
the value of those goods soless of them might be sold.
The problem, of course, is thatyou're just taxing stuff right,
and so it just makes all thosethings more expensive.
If Canada imposes a tariff onFlorida orange juice, no doubt

(01:40):
the Florida orange juiceproducers will be unhappy.
They'd sell less orange juice,but orange juice prices just go
up.
So you just produce inflationand costs for Canadian consumers
.
Same is true in reverse, andthe problem for a smaller
country like Canada is that theimpact of the US trade in orange
juice is going to be much toCanada, will be much less
consequential than perhaps thereduction in sales to the United

(02:05):
States of Canadian oil orwhatever else we might be
selling to them.
Here's the interesting legalalternative to that, and it's
important to go back to theoriginal US-Canada free trade
agreement that was implementedback in 1998.
And one of the central parts ofthat agreement and it was really

(02:25):
one of the core interests ofthe United States was to try to
get increased protection for USintellectual property, and it's
important to know thatintellectual property provisions
are just legal fictions.
Right Things like prior to thatfree trade agreement.
For example, canada wouldroutinely grant licenses to

(02:47):
Canadian drug manufacturers tomanufacture drugs that were
invented in the United States,and the United States didn't
want that.
They wanted patent protectionso that their drug companies
could get royalties for the useof the drugs or to sell the
drugs.
For the use of the drugs or tosell the drugs.
And the same is true with a lotof other things which are a

(03:14):
major part of US exports,quote-unquote.
They would include things likecopyrights for films, copyrights
for music, copyrights for books, copyrights for TV shows,
patents, trademarks that wouldbe all manner of things Computer
software.
All of that produces a verylarge portion of the amount of
money paid to the United Statesin trade, and all of that is

(03:37):
subject and only protected byoperation of domestic Canadian
law, domestic.

Adam Stirling (03:41):
Canadian law.

Michael Mulligan (03:41):
Yeah, the Canadian government would be
free to say, for example, nocopyright protection for any US
movies, tv shows, computersoftware, pharmaceuticals, wow.

Adam Stirling (03:51):
So streaming is free suddenly.

Michael Mulligan (03:53):
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 USdrug companies invented?
Feel free to copy it.
Do you have agriculturalproducts, other high-tech things
?
Copy away, wow.
And there are two examples ofthis.

(04:13):
It was interesting to look atwhere this was used as a threat
in response to a trade disputewith the United States from
smaller countries, and it worked, wow.
The best example of it is fromBrazil, and there was a dispute
there.
It was a dispute over cottonsubsidies, and it started back
in 2002.
And Brazil's complaint was theUS was unfairly subsidizing its
cotton producers, hurtingBrazilian cotton producers.

(04:36):
And so Brazil brought acomplaint to the WTO, world
Trade Organization, and they gotapproval to retaliate by
removing US intellectualproperty protections.
And the US drafted up aproposal to do that, which would
mean that there would be noprotection for US patents,
copyrights, trademarks,pharmaceuticals, biotechnology,

(04:58):
chemicals, motion pictures,music or book publishing.
They would then implement largefees if they wanted to protect
any of those things which theBrazilian government would
collect, or those things couldsimply be copied for free in
Brazil.
The US lost its mind andcapitulated, and they
capitulated to Brazil and the USbegan paying Brazil $130

(05:23):
million per year to their cottonindustry.
It worked.
The other example of it wasAntigua.
Antigua had a dispute with theUnited States over allowing
gambling online gambling.
Antigua tiny little country,tropical island it's about two
and a half times the size ofWashington DC.
Tiny.
It got itself a high-qualityfiber optic cable connection to

(05:47):
the Internet in the late 1990sand promptly used that to set up
a huge online gaming industry.
Gambling and a lot of thecustomers were in the United
States.
Us didn't like that much and sothey were blocking and banning
all of that.
Antigua made a complaint againto the WTO and got approval to
retaliate by taking USintellectual property and it

(06:10):
authorized Antigua to simply notpay for US intellectual
property.
Allow Antigua to distributemovies, tv shows, music, all
free or charged for whateverthey wanted.
And that dispute also resolved.
And the beauty of this, it's anasymmetrical approach.

(06:31):
Some writers have referred toit as sort of the trade
equivalent of when you're havinga fight with the United States.
It's their little port in theDeath Star, because so much of
what the US exports isintellectual property and it's
entirely illegal fiction andentirely outside of their

(06:52):
capacity to control whether it'sprotected, and in the last
round of negotiations with theUS, the US Free Trade Agreement
became the USMCA.
The US interests in that werevery much focused on exactly
this issue.
They wanted longer copyprotection for recordings, music

(07:13):
, tv shows, getting themextended to 75 years plus the
life of the person, makingcriminal penalties for doing
things like circumventingdigital locks on performance,
getting extended copyrights formusic and sound recordings,
locks on performance, gettingextended copy rates for music
and sound recordings.
Getting increased protection forpharmaceutical patents that's a

(07:34):
really, really big one.
Some drugs cost half a milliondollars a year for somebody.
It's not because the drug coststhat much to make, it's because
there's a patent on it and thecompany usually is the US.
There are very few, frankly,that are developed in Canada are
able to extract huge amounts ofmoney.
All that can just be taken away, all of it.
They were concerned aboutagricultural chemicals and

(07:57):
wanting 10 years of dataprotection on how they're
produced.
They wanted increasedprotection 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, Dowhatever you want All books,
movies, tv shows, all streaming.
They're very concerned abouthaving Canada implement criminal

(08:19):
and civil protections forencrypted satellite and cable
signals.

Adam Stirling (08:23):
We just take that all away.

Michael Mulligan (08:24):
They were able to negotiate enforcement at the
border for things like goods,because I've talked about many
of these things like patentprotections for drugs.
Are these sort of intellectualproperty, Canada passing laws
making it criminal or puttingcivil penalties stopping
Canadian drug manufacturers fromjust copying, you know,
whatever Ozempec or I guessthat's not a US one, but

(08:46):
whatever US drugs all of thatcould just be taken away by
Canada unilaterally.
But they also managed to getthings like protections put in
place to stop the trade in quotecounterfeit or pirated goods.
And the concern there would belike, let's say, you're a US
company, you're Apple and youdevelop some headphones or you

(09:06):
develop whatever they're notmade in the United States Most
things are made somewhere else,frankly, and the US concern is
some other company in China willjust start making iPods or
AirPods or whatever it is andthen shipping them other places.
So they're wanting Canada andother countries to put in
provisions to stop quote piratedgoods, which would be goods not

(09:29):
made in the US, made somewhereelse, but using US intellectual
property.
And so they were able to getincreased protections and border
protections and civil andcriminal penalties put in place
by Canada to stop that.
All of that could just be takenaway, and it's worked, uh, and

(09:51):
it's worked.
The brazil example, the the,the theory there is the us was
so afraid, uh that this wouldspread as a method of enforcing
uh trade requirements on thelarger uh us that that's why
they started paying hundreds ofmillions of dollars to brazil
over cotton yeah right.
It wasn't that brazil was goingto bring them to the US, to its
knees, by putting in tariffs onphysical goods being exported

(10:13):
there, although they had a fewthings they were threatening to
do.
It's this capacity to decimateUS industries by taking away all
of their intellectual propertyprotections and simply the
threat of doing that.
You can imagine the degree oflobbying that would be going on
in Washington DC and elsewherefrom all of the drug companies,

(10:35):
all of the chemical companies,all of the computer software
companies, all of the musicindustry, the movie industry,
the TV industry, the satelliteindustry, all of that.
The value of what they havecould be turned to zero.
And when you have a countrylike Canada that's going to be
larger and more sophisticatedthan Antigua, you could also

(10:56):
imagine those kind of thingsbeing exported.
Okay, us or Canadian companiesare going to produce US drugs or
drugs developed in the US.
No patent protection here, orit's going to last one year, or
the US company S company willhave to pay, you know, 50% of
whatever money it makes,whatever we want.
And you could also see Canadachoosing to export those things,
and so it would be crippling tothe United States and has the

(11:20):
added bonus of not increasingthe cost of products for Canada,
like taxing orange juiceimports or taxing Harley
Davidson motorcycles which ofcourse that's not great if
you're the exporter of thosethings in the US but we're just
taxing ourselves, right, we'rehitting ourselves on the head.
We'll show them.
Look at us, we're hittingourselves on the head by

(11:41):
increasing the price of food.
That's not a great response.
This response would have thebenefit of decreasing the cost
of drugs, us products, all kindsof things.
Great for inflation, great forCanadian consumers, devastating
for US companies.
And it seems to me, with thesetwo examples of success, using

(12:04):
just the threat of it, just thethreat of it, it is a very
appealing option and iteffectively turns a smaller
country into the tie fighterdealing with the US.
Death Star, because it isliterally their Achilles heel
and they are terrified at losingit.
And the companies whose entirevalue is completely dependent on

(12:28):
you know, on legal protectionand nothing else Like what's a
US pharmaceutical company worthif you're just freely
manufacturing whatever drug theymight have developed for $5
billion?
If that could just be freelycopied and distributed, that
company's worth nothing, and sothis, I hope, is being

(12:48):
considered as a moresophisticated alternative to
taxing orange juice.
This, I think, simply thethreat of this, is likely to
cause a huge swath of the USbusiness interests to lose their
mind, with the possibility oftheir entire value being turned
to near zero, and all somethingthat Canada is free to do, and

(13:12):
we used to do it.
We used to do this with drugsBefore there was that free trade
agreement.
Canada would just authorizecompanies to make drugs in
Canada.
They were sort of promised ohyes, all this development will
move to Canada if you have theselong patent protections.
That hasn't really happened,and so this, to my mind, has
just great potential, and youcan just imagine what it wants

(13:36):
to be.
Every movie studio, everypharmaceutical company, every
agricultural high-tech company,monsanto will be losing their
mind.

Adam Stirling (13:44):
All of them.
Well, I was just going to saywe could make our own versions
and sell them to other countriesas Canadian products, and if we
steal the patent from the US,the other country is not
technically stealing, we canjust call it ours.

Michael Mulligan (13:55):
Yeah.
And we say and there's noproblem, china apparently has
got overtures in wanting tradewith Canada.
And they say look, there'sgoing to be no more interest in
criminal penalties for quotepirated things from China.
For quote pirated things fromChina you want to produce some
AirPods, you want to producewhatever it is you want to
produce over there.
We don't care where you got thedesign from, we're happy to buy
it.
It'll be much cheaper.
So this seems like a greatalternative and it is certainly

(14:20):
better than the 51st state andcertainly better than hoping
that we're going to tax USorange juice to bring the US to
its knees.
That's never going to happen.
This seems great and there aretwo examples of it working and I
hope that this is beingconsidered because it's just got
great possibility for anasymmetric trade fight with the
United States.
It's literally their Achillesheel.

Adam Stirling (14:40):
Michael Mulligan with Mulligan Defense Lawyers,
legally speaking.
We'll continue right after this, continuing now with Legally
Speaking with Michael Mulliganwith Mulligan Defense Lawyers.
Michael, that was a fascinatingtopic with intellectual
property and how the UnitedStates of America is hopelessly
dependent upon jurisdictionslike Canada enforcing its
intellectual property rules tostop us from all just copying a

(15:03):
free version of a movie insteadof buying it off an American
streaming service or similarly,sharing a book or a
pharmaceutical patent orsomething like that.
I could certainly see thatcatching on, especially if the
United States decides to imposetariffs on many other nations.
What else do we have on theagenda today?

Michael Mulligan (15:20):
The other case on the agenda today is a tragic
one out of Nanaimo.
It is an interesting littletidbit on admissibility of
expert evidence in a murder casefrom up there and it's a case
that was a first-degree murdercharge.
It was a woman who was chargedwith the first-degree murder of
her boyfriend and thecircumstances of the death were

(15:45):
pretty gruesome.
She apparently hit him with ahammer while he was asleep, slit
his throat and then gutted himlike a body of a deer, put him
in the freezer and then slowlydismembered his body and
disposed of it all overVancouver Island.
So a very gruesome murder andbody disposal.

(16:07):
But the issue in the case waswhether she was acting in
self-defense as an abusedpartner and Canada has
recognized this concept ofbattered spouse and to allow
expert evidence on that toexplain why some people who are

(16:28):
the victims of spousal violencedon't just leave.
Right, because you say, look,even if you just leave, why
would you respond by usingviolence to kill a person?
And there is a lot of.
There is expert evidence courtshave accepted it that in some
cases people who are the victimsof extended and prolonged
spousal abuse don't feel thatthey're able to do that or

(16:52):
conclude that their abusivepartner is going to hunt them
down and kill them or kill theirfamily or do something else,
and so you can have thisexpanded self-defense.
And this case was interesting.
The woman effectively confessedto undercover police officers
that she had committed the crimeundercover police officers that
she had committed the crime,but she also, in the course of

(17:14):
that, told them about a longhistory of serious abuse from
this man prior to her killinghim, including him choking her
into unconsciousness andassaulting her with a shovel and
threatening to kill her.

Adam Stirling (17:35):
And then the other interesting element.

Michael Mulligan (17:36):
This was the expert evidence issue also
seriously abusing her cat, andthe fellow apparently had on and
she told the police about this.
Undercover had abused the catby physically abused it had
thrown it against the wall onone occasion, breaking one of
its teeth.
And the night before thekilling she returned home to
find the cat in obvious distress, cowering beneath her bed and
urinated on the floor, washissing nonstop and wouldn't

(17:57):
feed her kittens, and concludedthat this was likely the man
abusing the cat and she wasextremely concerned about the
cat and its well-being.
Even in the context of havingbeen arrested for first-degree
murder, she was concerned aboutwhat's happening to the cat,
who's taking care of it, and sothe defense wanted to call
expert evidence from an expertwho was an expert.

(18:19):
She was a university professorin sociology from the University
of Windsor and an expert onthings including intimate
partner violence and themistreatment of domestic pets,
including intimate partnerviolence and the mistreatment of
domestic pets, and shepublished on that and lectured
on that, and the evidence thatwas proposed was to the effect

(18:45):
that some people wind up withviewing pets as an extension of
themselves and perceive violenceand threats to their pet as a
violent or threat againstthemselves and they may perceive
that if their pets are at riskof harm or death, they may be
next.
And so there is an issue aboutis that kind of evidence
admissible in a murder trial?
Is that potentially relevant?
Now, the other thing that'sinteresting about this case is

(19:05):
that murder cases in Canada arepresumptively tried by a judge
and jury, and it used to be.
That was mandatory.
It's now the case, and it hasbeen for a number of years that
you can have a murder trial witha Supreme Court judge alone if
both the Crown and the defenseagree.
If they both agree, fine, theycan do that.
This was a case where that'swhat happened.

(19:27):
There was an agreement of ajudge alone trial, but
nonetheless the judge had a voirdire hearing the evidence from
this expert about that issue todetermine is that evidence which
the judge should admit orconsider at all?

(19:56):
And courts have an obligation,the judges have an obligation to
they refer to it sometimes assort of the gatekeeper function
to make sure that evidence isgoing to be properly admissible.
And one of the tests theyreveal is this going to be more
prejudicial than it is probative?
And you know, in the case ofexpert evidence, is expert
evidence necessary?
And you know should an expertbe permitted to provide an
opinion?
Because generally witnessesaren't there to provide opinions
.
They're there to tell you whatdid the car look like, not what
do you think the person wasthinking right, yeah.

(20:16):
And so here the judge heard thisevidence, which is quite unique
, and concluded that, yes, itdoes meet that threshold test
and the expert evidence in thecourse of a murder trial
involving spousal abuse.
It can be important so thatthere can dispel myths about how
a spouse, short or might reactin response to being abused.

(20:39):
Why didn't you just leave Right, which would be the starting
point?
People might think, why wouldyou have to kill somebody?
It, ultimately, the judge wasnot persuaded that she was
acting in self-defense, but didfind that the Crown hadn't
proven beyond a reasonable doubtthat the killing was planned

(20:59):
and deliberate, that instead shehad sort of acted, sort of on
the spur of the moment thatnight, deciding to kill him, and
so did not convict her offirst-degree murder but did
convict her of second-degreemurder, which has an impact on
when parole eligibility might bethere.
So, anyways, I thought it wasan interesting case, both for
the issue of admissibility,expert evidence and how the

(21:20):
abuse of pets can play into thatissue of a battered spouse.

Adam Stirling (21:24):
Michael Mulligan, with Mulligan Defense Lawyers,
legally speaking during thesecond half of our second hour
every Thursday.
Michael, thank you, pleasure asalways.