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5 Crim. L. & Phil. 1 (2011)

handle is hein.journals/crimlpy5 and id is 1 raw text is: Crim Law and Philos (2011) 5:1-20 DOI 10.1007/s11572-010-9097-2 What are Intoxicated Offenders Responsible for? The Intoxication Defense Re-examined Susan Dimock Published online: 13 July 2010 © Springer Science+Business Media B.V. 2010 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. Keywords Automatism - Criminal defenses - Intoxication - Mens rea Moral fault - Prior fault - Responsibility - Substitution - Voluntariness Brief History of Intoxication in Criminal Law The common law has always had difficulty dealing with intoxicated offenders. Clearly intoxication should not be an excuse or justification, nor are persons who use intoxicants exempted from meeting the demands of the criminal law or answering for their failure. Intoxication, if relevant to questions of criminal responsibility and liability, seems to be so because intoxication can affect a person's mental states. Intoxication might be relevant to the mental states of persons at the time they commit an offence, and so relevant in determining whether they had the required mens rea for the crime charged. If crimes require subjective mens rea-knowledge, intention, malice, planning, deliberation, fore- sight, awareness, advertent recklessness or wilful blindness-then intoxication should be relevant to assessments of guilt, because it is relevant to an essential element of such crimes. Defendants should be able to use intoxication as an evidential basis for claiming that they lacked the mens rea of the offence and so to raise a reasonable doubt as to fault, for all offences requiring subjective fault. Not surprisingly, then, the intoxication defense began as a common law defense in recognition of the fact that an accused person may be sufficiently intoxicated not to have the subjective mens rea for the crime charged. S. Dimock (E) Department of Philosophy, York University, 4700 Keele Street, Toronto, ON M3J 1P3, Canada e-mail: dimock@yorku.ca Springer

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