Criminal Enforcement of Trade Secret Theft: Strategic Considerations for Canadian SMEs

Abstract

Many innovative small and medium enterprises (SMEs) face unique challenges in protecting their intellectual property (IP). Potential theft of trade secrets is a key feature of these challenges, which arises often in the context of disputes related to employee mobility. Despite the risks these challenges pose, SMEs often confront significant resource barriers in protecting themselves from trade secret theft. The passage of a recent criminal law by the Canadian federal government, section 391 of the Criminal Code, creates a powerful new tool for innovative SMEs to report, investigate, and prosecute theft of trade secrets. It also comes with specific considerations and risks that innovative SMEs should examine and contemplate. This article explores strategies for SMEs in Canada to use section 391 to protect their trade secrets, navigate the legal environment during theft of a trade secret, and remediate such theft.