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July 21, 2014

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Gareth Morley

All I know about the Ontario case is from the CCF flyer. But it sure doesn't look like the issue is proof vs. accepting the assertions of the government. (My experience has not been that courts just accept the assertions of the government -- not that I am complaining, since of course they shouldn't).

Just from the CCF flyer, it looks like it was pretty open-and-shut that the gun collection was illegal, since the owner decided to make a political point by refusing to comply with gun regulation. It's not as clear from the leaflet, but presumably he also took the view that he wasn't going to start complying with gun control laws just because some hippy commie-loving judges told him to.

At that point, I sort of wonder what the state, in its executive and judicial forms, is supposed to do. You may not like Canadian gun laws, but they are enacted through the democratic process, are widely popular and are not the subject of serious constitutional controversy. Throwing this guy in prison would be disproportionate. Taking away his guns, not so much.

There is this view out there that forfeiture laws do not put the onus of proof on the government. This was true in some cases in the US before the 2000 Asset Forfeiture reform, but has never been true in Canada. There is a confusion between onus of proof and standard of proof. Civil forfeiture laws require proof on a balance of probabilities. The justification is that you can lose your property to your ex-wife or former business partner on a balance of probabilities, so the purpose of the reasonable doubt standard is to protect liberty. But the balance of probabilities standard is applied pretty strictly against the state (again, I'm not complaining).

MY

Good points - I too only know about the ON case from the CCF and Nat'l Post (hence my brief reference to it). In general, I am for a rigorous standard of evidence, as you point out, something that is (was?) lacking in the US.

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