Senator Gold: Well, you would have made a very good law student because that’s a very good question. In fact, it is one of the things that went to the heart of the choice made by Parliament 20 years ago to choose this path — rather, I should say it chose, 20 years ago, not to create the offence of getting drunk negligently, to which I alluded briefly as one of the pathways.

The path of Bill C-28 preserves the offence with which you’re charged. So if you were found guilty of sexual assault despite the fact that you were really high or drunk, and you lost control because you were negligent in getting so high or drunk, you’re convicted of sexual assault with all the penalties and the stigma, if I can use that term, and the social disapprobation that attaches to that conviction.

Twenty years ago, the then-minister of justice Allan Rock — and this was much debated — was having to figure out which pathway to choose. He worried aloud, as did many scholars, that simply making a stand-alone offence of being criminally, negligently intoxicated would provide what he called a “drunk discount” to the offender. By definition, the penalty would have to be less than for the sexual assault that was actually committed, and the stigma would be less. Indeed, even Supreme Court Justice Kasirer — I quoted at length from the judgment and I could quote at even greater length — makes the same point, 20 years on. He referred to the literature. He said a stand-alone offence would not achieve Parliament’s dual purposes that are still relevant and valid, underlying section 33.1, and that is one of the reasons that, 20 years ago, that was not the option chosen. And it’s one of the reasons this government has chosen the second pathway that the court laid out. I hope that answers your question.