the circumstances in which a complainant could be found to
lack an operating mind:
This begs the question: what constitutes an operating mind? Comatose,
insensate or unconsciousness cannot qualify. Major J., in R. v Esau, supra,
reflected that being unconscious due to intoxication is not the only state
capable of removing a complainant’s capacity to consent (para. 24). Mere
awareness of the activity is also insufficient to ground capacity where the tri-
al judge accepted that the complainant was “out of control” and “not able to
say no” due to the involuntary ingestion of drugs (R. v. Daigle (1997), 127
C.C.C. (3d) 130 (Que. C.A.), aff’d  1 S.C.R. 1220).
On the other hand, requiring the cognitive ability necessary to weigh the risks
and consequences of agreeing to engage in the sexual activity goes too far.
Therefore, a complainant lacks the requisite capacity to consent if the
Crown establishes beyond a reasonable doubt that, for whatever reason, the
complainant did not have an operating mind capable of:
1. appreciating the nature and quality of the sexual activity; or
2. knowing the identity of the person or persons wishing to engage in
the sexual activity; or
3. understanding she could agree or decline to engage in, or to continue, the sexual activity.
In cases where consent and capacity to consent are live issues, the trial
judge must determine if it has been established beyond a reasonable doubt
that the complainant did not consent, or lacked the capacity to consent. As
detailed above, these inquiries are entirely subjective.
(Citations in original)
 Here, I agree with the submissions of the Crown on
appeal that while mere proof of drunkenness, loss of inhibitions,
regret for a bad decision or some memory loss do not of themselves negate capacity for consent, some physical actions such as
walking a short distance, making a phone call, speaking and
some awareness of or resistance to sexual activity do not necessarily preclude a finding of incapacity. I also agree that some
memory of the events is not necessarily inconsistent with incapacity:
R. v. P. (C.),  O.J. No. 2221, 2017 ONCJ 277, at paras.
69-70, affd  O.J. No. 644, 2019 ONCA 85, leave to appeal
to S.C.C. requested, 38546 (March 11, 2019); Tariq, at paras. 5,
116, 120-121, 124; Daigle, at pp. 133, 137 C.C.C.; Bell, at paras.
7, 44-46, 48; Wobbes, at paras. 12, 15, 24; G. (L.), at paras. 23-24,
94-99; R. v. Merritt,  O.J. No. 1295,  O.T.C. 290
(S.C.J.), at paras. 56-59; R. v. Powers,  O.J. No. 3932, 1999
CanLII 7332 (C.A.), at paras. 2, 7; R. v. Dixon,  O.J. No.
6215, 2018 ONCA 949, at paras. 3, 17-18; R. v. Crespo (2016),
132 O.R. (3d) 287,  O.J. No. 3058, 2016 ONCA 454, at