consent? He or she should first consider whether the Crown has
proven beyond a reasonable doubt that the complainant did not
consent to sexual contact. If the complainant did not consent,
then there is no ostensible consent which is vitiated by lack of
capacity. This two-step process was described in R. v. Hutchinson,
at para. 4:
The Criminal Code sets out a two-step process for analyzing consent to
sexual activity. The first step is to determine whether the evidence estab-
lishes that there was no “voluntary agreement of the complainant to
engage in the sexual activity in question” under s. 273.1(1). If the com-
plainant consented, or her conduct raises a reasonable doubt about the lack
of consent, the second step is to consider whether there are any circum-
stances that may vitiate her apparent consent. Section 265(3) defines
a series of conditions under which the law deems an absence of consent,
notwithstanding the complainant’s ostensible consent or participation:
Ewanchuk, at para. 36. Section 273.1(2) also lists conditions under which
no consent is obtained. For example, no consent is obtained in circum-
stances of coercion (s. 265(3)(a) and (b)), fraud (s. 265(3)(c)), or abuse of
trust or authority (ss. 265(3)(d) and 273.1(2)(c)).
 Where the Crown proves beyond a reasonable doubt that
the complainant did not affirmatively and subjectively consent to
sexual contact, this absence of a subjective mental state may
establish the requisite actus reus and there need not always be
a further inquiry as to capacity.
 To repeat, the absence of consent is subjective and determined by reference to the complainant’s subjective internal state
of mind towards the touching at the time it occurred: Ewanchuk,
at paras. 25-26.
 In Ewanchuk, the court held that a lack of verbal
resistance is not “implied” consent and that a belief that silence,
passivity or ambiguous conduct constitutes consent is a mistake
of law and provides no defence to an accused asserting reasonable
belief in consent: at paras. 31, 51; see, also, R. v. Barton, 
S.C.J. No. 33, 2019 SCC 33, at para. 82.
 For the purposes of establishing the actus reus there is no
“third option”; either the complainant consented or he or she did
not: Ewanchuk, at para. 31. As indicated in R. v. A. (J.), at para.
37, “[t]he complainant is not required to express her lack of consent or her revocation of consent for the actus reus to be established” (emphasis in original).
 Further support for the notion that where non-consent is
proven, there need not be an inquiry into capacity is found in
Ewanchuk. The court referred to s. 265(3) of the Criminal Code
which provided that “no consent is obtained where the complainant submits or does not resist” by reason of the application