Blurring the Civil-Criminal Divide for Process Rights: Closed Material Procedures and the Curious Character of Preventive Security Measures

Abstract

Closed material procedures (CMPs) are defined by a decision-maker's entitlement to render a decision using material that has not been disclosed to one of the parties on the basis that such disclosure would be contrary to the public interest. The rise of CMPs in the security context has been the subject of intense debate in both Canada and the United Kingdom, where the Canadian security certificate and its United Kingdom equivalents (the now-defunct control order and the terrorism prevention and investigation measure) are preventive security measures. Some have criticised the placement of these preventive security measures within the civil domain, arguing that their consequences - namely a deprivation of life, liberty and security rights - are of a criminal character and thus more stringent processes should apply to ensure that rights are safeguarded. Limited disclosure and the use of secret evidence, in particular, have been criticised for violating the suspect's right to know the case.