paras. 5, 9. As the case law demonstrates, the trier of fact must
consider all the evidence to make the factual determination of
the complainant’s capacity at the relevant time. Issues of incapacity can arise in a multitude of circumstances, including sleep,
intoxication, illness and intellectual disability.
 I observe that s. 273.1 of the Criminal Code was amended
effective December 13, 2018.1 It now provides as follows:
273.1(1) Subject to subsection (2) and subsection 265(3), consent means, for
the purposes of sections 271, 272 and 273, the voluntary agreement of the
complainant to engage in the sexual activity in question.
(1.1) Consent must be present at the time the sexual activity in question
(1.2) The question of whether no consent is obtained under subsection
265(3) or subsection (2) or (3) is a question of law.
(2) For the purpose of subsection (1), no consent is obtained if
(a) the agreement is expressed by the words or conduct of a person
other than the complainant;
(a.1) the complainant is unconscious;
(b) the complainant is incapable of consenting to the activity for any
reason other than the one referred to in paragraph (a.1);
(c) the accused induces the complainant to engage in the activity by
abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agree-
ment to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity,
expresses, by words or conduct, a lack of agreement to continue to
engage in the activity.
(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.
 The section now specifies that no consent is obtained
where the complainant is unconscious or where the complainant
is incapable of consenting to the activity for any reason other
than unconsciousness. This indicates that incapacity may arise
from conditions short of unconsciousness.
(c) Where both consent and capacity are potentially in issue
 How then should a trial judge approach the evidence when
dealing with potential issues of both consent and capacity to
1 An Act to amend the Criminal Code and the Department of Justice Act and
to make consequential amendments to another Act , S.C. 2018, c. 29, s. 19.