JULY/AUGUST 2018
34
INHOUSE
A
t the annual Uniform Law Conference of
Canada in 1989, there was proposed legislation
drafted that was called the Uniform Trade Se-
crets Act.
It provided for potential civil remedies against
anyone who acquired a trade secret improperly,
including through commercial espionage or elec-
tronic means. Courts could grant injunctions,
award damages and determine who could make future use of the trade secret.
The proposed legislation was put forward one year after the Supreme
Court of Canada issued its ruling in R. v. Stewart on the issue of whether
"confidential information" can be the subject of theft under the Criminal
Code. The court, in a unanimous decision, concluded that it could not,
since confidential information on its own is not property.
"Criminal law is designed to prevent wrongs against society as a whole.
From a social point of view, whether confidential information should be
protected requires a weighing of interests much broader than those of the
parties involved," wrote Justice Antonio Lamer for the court.
The ruling suggested this was a matter for civil litigation, although
Parliament might want to consider some criminal protection given recent
"technological developments" in society, the court said in its 1988 ruling.
Three decades later, there are still no criminal offences specific to this
area and the Uniform Trade Secrets Act was never enacted into law by any
province. In fact, the current website of the federal Canadian Intellectual
Property Office states flatly that there is "no formal process" for protecting
a trade secret.
The risk of having either trade secrets or intellectual property obtained
improperly, however, is higher than ever in the current digital world. A
theft
IP
external
from
Protecting
From proprietary
information accessed
by hackers to more
conventional forms
of piracy, the theft
of IP is on the rise.
In Canada, the onus
is on companies
to put their own
protections in place.
BY SHANNON KARI
