Abstract
I provide a brief history of the common law governing the criminal liability of intoxicated offenders, and the codification and application of the intoxication rules in Canada. I argue that the common law and its statutory application in Canada violate a number of principles of criminal justice. I then argue that the rules cannot be saved by attempts to subsume them under principles of prior fault. I end with a modest proposal for law reform.
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Notes
Thus Fischer and Ravizza’s tracing principle applies, because the two acts are suitably related to one another.
See Dimock (2009) for additional arguments against the proposition that becoming intoxication is necessarily reckless.
The Liquor Control Board of Ontario uses “Please drink responsibly” as a regular feature of it community messaging, including advertising and on its bags. If the very consumption of alcohol is necessarily criminally reckless, then at the very least the government is complicit in that fault, perhaps so much so that it has lost the right to hold citizens to account for it. On the role of complicity and standing to hold responsible, see Tadros (2009).
One except might seem to be Tony Honoré, who argues in “Responsibility and Luck: The Moral Basis of Strict Liability” that strict liability (liability that attaches to us in virtue of our conduct and its outcome alone, irrespective of fault) may be morally defensible. But even he restricts the use of strict liability to criminal sanction against those whose suffer bad luck in producing unwanted outcomes only from conduct that is “dangerous: storing explosives, running nuclear power stations, keeping wild animals, marketing drugs or other dangerous products, and… driving a car” (see Honoré 1999, p. 23). Even though Honoré is arguing in favour of outcome responsibility, it is not clear that he means his account to apply to criminal sanctions as well as tort remedies, since he accepts that criminal responsibility requires either fault or special danger, but then talks in the case of special dangers as giving rise to a duty to compensate victims, rather than the right of the state to impose criminal punishment (see also Lewis 1988).
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Acknowledgments
Thanks to the organizers of and participants at the International Conference on Moral Responsibility, Neuroscience, Organization and Engineering held in Delft, The Netherlands in August 2009, especially Antony Duff, Stephen Morse, Larry May, Nicole Vincent, and Mohamad Al-Hakim. I would also like to thank participants of the Canadian Section of the IVR, especially Nathan Brett and Paul Viminitz, and audiences at two talks given at McLaughlin College on this research, particularly Stanley Tweyman, Alice Propper, Ian Greene, David Shugarman and Tom Wilson. Finally, I thank Antony Duff and two anonymous referees for Criminal Law and Philosophy for valuable comments on an earlier draft.
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Dimock, S. What are Intoxicated Offenders Responsible for? The “Intoxication Defense” Re-examined. Criminal Law, Philosophy 5, 1–20 (2011). https://doi.org/10.1007/s11572-010-9097-2
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DOI: https://doi.org/10.1007/s11572-010-9097-2