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Defence lawyer Gary Martin, proper, representing Yuesheng Wang, and Crown Prosecutor Marc Cigana go away after chatting with the media following a listening to on the courthouse in Longueuil, Que., on Nov 15.Ryan Remiorz/The Canadian Press
Matt Malone is an assistant professor at Thompson Rivers College’s School of Regulation.
The arrest of Hydro-Québec worker Yuesheng Wang on Monday for allegedly acquiring commerce secrets and techniques from the utility on behalf of China places Canada in uncharted waters. It represents the primary main use of Canada’s prison commerce secrets and techniques legal guidelines and will immediate a shift towards cracking down on financial espionage. That is an space the place Canada has lagged the efforts of its friends for years – and nonetheless has an extended technique to go to get it proper.
Canada has two main prison commerce secrets and techniques legal guidelines. One criminalizes commerce secrets and techniques theft for the advantage of, or in affiliation with, a overseas financial entity. The opposite, and more moderen prison regulation, makes it an offence for anybody to acquire or talk a commerce secret by deceit, falsehood or different fraudulent means. Mr. Wang has been charged with each. It’s the first time both has been used.
Canada’s long-time reluctance to prosecute commerce secrets and techniques theft ought to come as no shock to anybody. The company prosecuting prison offences on behalf of the federal authorities doesn’t have a piece or unit dedicated to mental property crime. An entry to info request I filed final 12 months confirmed no authorities legal professional is dedicated to investigating or prosecuting such crime as a part of their job mandate.
It is a sharp distinction to our allies. America has been ramping up enforcement towards commerce secrets and techniques theft for many years. Since 1996, a minimum of 419 defendants have been charged with prison theft of commerce secrets and techniques.
In the meantime, the U.S. Commerce Consultant has expressed appreciable fear about Canada’s lacklustre enforcement of mental property regulation – holding Canada on its watchlist of nations with lacklustre enforcement since 2010. American trade has additionally lobbied laborious for Canada to do extra to guard commerce secrets and techniques. One of many few commerce secrets and techniques legal guidelines we do have – one of many two Mr. Wang was charged below – solely exists attributable to American insistence that Canada go such a regulation.
However specializing in prison prosecution shouldn’t be the one reply. Whereas there may be definitely a task for the federal government, leaving enforcement solely in its arms could produce antagonistic results. For instance, the American method to cracking down on commerce secrets and techniques theft appears more and more inseverable from the broader creep of xenophobia into its politics – as witnessed in then-president Donald Trump’s nominal China Initiative in 2018 and President Joe Biden’s choice to retain that program for 2 years when he assumed energy.
If Canada follows the U.S. in cracking down on Chinese language commerce secrets and techniques theft specifically, it must also consider carefully concerning the prices of coping with a China that’s greater than able to retaliate. Recall that the underlying motion towards Huawei resulting in Canada’s detention of firm govt Meng Wanzhou in Vancouver and China’s retaliatory arrest of the 2 Michaels stemmed, partially, from an American prison lawsuit about commerce secrets and techniques theft.
Moreover, Canadian regulation enforcement, intelligence companies and prosecutors clearly don’t excel at enforcement on this space. The dearth of motion and steering from the federal government urgently wants supplementation by the personal sector, which is commonly a better, higher, nimbler and extra enforcer.
Whereas Canadian regulation makes obtainable sure civil instruments such because the breach of confidence and breach of fiduciary obligations to personal events, these judge-made gadgets are ill-equipped for the digital period and include vital disadvantages.
The Canadian Mental Property Institute, the Alberta Regulation Reform Institute, the Uniform Regulation Convention of Canada and plenty of like myself have proposed Canada proceed with passing a civil commerce secrets and techniques regulation akin to the Patents Act, the Copyright Act and the Logos Act. Such a regulation would let personal events – not simply authorities – convey lawsuits for misappropriation and infringement. It’s unlucky that, to date, no authorities has heeded these calls.
For commerce secrets and techniques and confidential info, there is no such thing as a query that, with a lot worth inhering in intangible property, offering sufficient safety for commerce secrets and techniques and confidential info is a prerequisite within the digital financial system. Getting it proper is essential.
