to prove that the accused’s actions were voluntary. The sexual nature of the
assault is determined objectively; the Crown need not prove that the accused
had any mens rea with respect to the sexual nature of his or her behaviour.
 Further, in R. v. Ewanchuk, at paras. 26-27, the court held
that the absence of consent is a subjective matter and determined
by reference to the complainant’s subjective internal state of
mind towards the touching at the time it occurred.
 In R. v. A. (J.),  2 S.C.R. 440,  S.C.J. No. 28,
2011 SCC 28, at para. 31, McLachlin C.J.C. concluded that the
relevant statutory provisions of the Criminal Code suggest that
Parliament saw consent as “the conscious agreement of the complainant to engage in every sexual act in a particular encounter”.
Consent means voluntary agreement as to the touching, its
sexual nature and the identity of the partner: R. v. Hutchinson,
 1 S.C.R. 346,  S.C.J. No. 19, 2014 SCC 19, at
para. 5. The court indicated that in this context, given the
Criminal Code provisions pertaining to incapacity that “
Parliament intended consent to mean the conscious consent of an
operating mind”: A. (J.), at para. 36.
(b) When is a complainant incapable of consenting to
 What then are the characteristics of a conscious consent of
an operating mind at the time the sexual activity occurs?
 As noted in Janine Benedet, “The Sexual Assault of Intox-
icated Women” (2010), 22 Can. J. Women & L. 435, at p. 442:
Turning first to incapacity, there are numerous cases in which courts find
a complainant incapable of consent due to intoxication, but in almost all of
these cases the complainant is also asleep or unconscious when the sexual
assault begins. Where the complainant is not unconscious, but merely drunk
or high, courts have struggled to articulate a threshold for incapacity short of
 An unconscious or sleeping person is incapable of
consenting to sexual activity. On the other hand, capacity for
considered evaluation of the collateral risks and consequences
of sexual activity sets the bar too high for capacity to consent
to sexual relations.
 In R. v. Al-Rawi,  N.S.J. No. 18, 2018 NSCA 10, 359
C.C.C. (3d) 237, Beveridge J.A. discussed elements of capacity
to consent to sexual relations established by the jurisprudence,
at paras. 60-61, 66-67, and I adopt that summary, subject to
the caveat that, in light of the varieties of human conditions
which may raise issues of incapacity, it may not describe all of