their view, the totality of the evidence at trial, particularly C.R.’s
testimonial evidence, could not reasonably support such a finding
of incapacity. The appellants also point to evidence of C.R.’s
alcohol consumption and toxicology evidence to support this
argument. They submit that the verdict was unreasonable in the
sense described in R. v. Sinclair,  3 S.C.R. 3,  S.C.J.
No. 40, 2011 SCC 40, Fish J., dissenting but not on this point,
at para. 21:
A verdict is likewise unreasonable where the judge draws an inference or
makes a finding of fact essential to the verdict if that inference or finding of
fact is “‘demonstrably incompatible’ with evidence that is neither contradict-
ed by other evidence nor rejected by the trial judge” (Beaudry, at para 79, per
Binnie J.). Here, an essential inference that appears compatible with the evi-
dence from which it is drawn implodes on contextual scrutiny. This is so
where a trial judge infers from some of the available evidence that an accused
had the requisite intent to obstruct justice and this inference is supportable
on the evidence relied upon but is not supportable on consideration of other
evidence that has been neither contradicted by other evidence nor rejected by
the trial judge. Here, too, a verdict of guilt “would lack legitimacy and would
properly . . . be treated as ‘unreasonable’” (ibid.).
(Citations in original; emphasis in original)
 The appellants submit that a new trial is required because
the trial judge did not deal with the evidence suggesting a lesser
degree of intoxication.
 I do not agree that the nature of the account given by the
complainant in itself is demonstrably incompatible with incapacity to consent to sexual relations, or that the trial judge failed to
consider this evidence. The complainant’s intermittent awareness, her waking from sleep to find sexual acts performed upon
her, her saying no, and her own description of her condition could
allow a reasonable trier to conclude beyond a reasonable doubt
that she did not consent to the sexual activity or that she was incapable of consenting to the activity.
 Complete unconsciousness and absence of memory are not
the only conditions which establish incapacity. Varying degrees of
awareness, memory and ability to articulate what happened have
supported findings of incapacity: see R. v. Tariq,  O.J. No.
5386, 2016 ONCJ 614, 343 C.C.C. (3d) 87, at paras. 5, 116, 120-
121, 124; R. v. Daigle,  J.Q. no 2668, 127 C.C.C. (3d) 130
(C.A.), at pp. 133, 137 C.C.C., affd  1 S.C.R. 1220, 
S.C.J. No. 54; R. v. Bell,  O.J. No. 1725, 2007 ONCA 320,
223 O.A.C. 243, at paras. 7, 44-46, 48, leave to appeal to S.C.C.
refused  S.C.C.A. No. 351; R. v. Wobbes,  O.J. No.
2999, 2008 ONCA 567, 235 C.C.C. (3d) 561, at paras. 12, 15, 24;
R. v. G. (L.),  O.J. No. 3611, 2007 ONCA 654, 228 C.C.C.
(3d) 194, at paras. 23-24, 94-99.