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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Our principal concern in this paper is with the accusation that hate crime legislation violates the principle of proportionality and related principles of just sentencing, such as parity, fair notice, and representative labelling. We argue that most attempts to reconcile enhanced punishment for hate crimes with the principle of proportionality fail. More specifically, it seems that any argument that tries to justify hate crime legislation on the grounds that such crimes are more serious because their consequential harms are worse or their perpetrators are more culpable than their nonhateful counterparts will fail, and thus enhanced punishment will violate the principle of proportionality. Given the seeming irreconcilable tension between proportionality and hate crime legislation, we turn to consideration of hybrid theories of punishment that permit deviations from strict proportionality when needed to serve other important and legitimate purposes of sentencing. We argue that even if such hybrid theories can justify the enhanced punishments for hate crimes, existing theories cannot provide any principled limit on the extent from which proportionality can be deviated. We suggest such a limit and provide a principled justification for it.

Hobbes's central insight about ethics was that it should not be understood to require that we make ourselves a prey for others. It is this insight that both varieties of contractarianism [Hobbesian and Kantian] respect. Consider a relationship between two human beings that exists for reasons of either love or duty; let us also suppose that it is a relationship that can be instrumentally valuable to both parties. In order for that relationship to receive our full moral endorsement, we must ask whether either party uses the duty or the love connecting them in a way that affects the other party's ability to realize the instrumental value from that relationship. To be sure, good marriages and good friendships ought not to be centrally concerned with the question of justice, but they must also be, at the very least, relationships in which love or duty are not manipulated by either party in order to use the other party to her detriment.