New Criminal Remedies Available for Theft of Trade Secrets

On July 1, 2020, The United-States-Mexico Canada (USMCA) trade agreement will come into force. This agreement has led to the enactment of a new Criminal Code of Canada (CCC) provision, Article 391, which provides protection to help deter the theft of trade secrets.

Article 391 makes it illegal to intentionally steal or knowingly obtain another’s trade secret through the commission of an indictable offence. Anyone who commits, attempts to commit, or is an accessory to such an offence under the CCC can be punished by way of an indictable offence and may face imprisonment for a term of up to 14 years. Additionally, individuals charged with this offence can be punished by way of summary conviction under Article 391(3). There is some uncertainty as to what acts specifically could amount to these offences, but it is clear that there is an emphasis on obtaining trade secrets through fraudulent or deceitful means. The CCC incorporates a statutory defence at Article 391(5) where the trade secret in question was not stolen and instead was independently developed or reverse engineered.

Trade secrets have not been afforded statutory protection in the past and these revisions to the CCC give criminal law protection to a valuable and often overlooked form of intellectual property.

Summary By: Juliette Sakran