I would not conclude that the testimony the complainant
gave about her incapacity was plainly contradicted by other evidence or that it was incompatible with evidence not otherwise
contradicted or rejected by the trial judge: see R. v. P. (R.), 
1 S.C.R. 746,  S.C.J. No. 22, 2012 SCC 22, at para. 9.
(2) Analytical approach to consent and capacity
 While I am not of the view that the trial judge erred in
reaching a verdict that was unreasonable on the basis that the
complainant’s coherent narrative was incompatible with incapacity on her part, I am of the view that the trial judge did err
in his analysis of consent and capacity. The trial judge failed to
consider the issue of consent separately from the issue of
capacity, and further, did not apply the jurisprudence discussing the level of intoxication which could result in a finding of
incapacity. Before analyzing the trial judge’s errors in detail,
I will first review the concepts of consent and capacity, in the
context of sexual activity, and will then proceed to articulate
the correct approach for analysis when both consent and
capacity are potentially in issue.
 While this is not the precise argument advanced by the
appellants, the issues related to consent and capacity were central
to the arguments made on appeal by both the appellants and the
Crown. As noted in R. v. Mian,  2 S.C.R. 689,  S.C.J.
No. 54, 2014 SCC 54, at para. 33, “issues that are rooted in or are
components of an existing issue are . . . not ‘new issues’” for the
purposes of appellate review.
(a) What is consent?
 Subsection 273.1(1) of the Criminal Code, as it was at
the relevant time, provides that consent means the voluntary
agreement of the complainant to engage in the sexual activity
in question. Subsections 273.1(2)(b) and (d) provide that no
consent is obtained where the complainant is incapable of
consenting to the activity or where the complainant expresses
by words or conduct, a lack of agreement to engage in the
activity. Subsection 273.1(3) provides that nothing in s. 273.1(2)
shall be construed as limiting the circumstances in which no
consent is obtained.
 In R. v. Ewanchuk,  1 S.C.R. 330,  S.C.J. No.
10, at para. 25, the Supreme Court delineated the elements of the
actus reus of sexual assault:
The actus reus of sexual assault is established by the proof of three elements:
( i) touching, ( ii) the sexual nature of the contact, and ( iii) the absence of con-
sent. The first two of these elements are objective. It is sufficient for the Crown