findings. In any case, the analysis should not be blurred between
the two separate issues, consent and capacity to consent.2
Further, where potential incapacity relates to non-transient
conditions, avoiding unnecessary inquiries as to capacity where
non-consent is proven is more respectful of a complainant’s
autonomy and privacy.
 This is not to say that the factual circumstances of, for
example, intoxication may not be relevant to both whether there
was subjective consent and to incapacity to consent. In the present case, for example, the Crown argued that the complainant’s
profuse vomiting made it unlikely she would have consented to
sexual contact. The same vomiting was relevant to the degree of
consumption of alcohol and the effect it may have had on her
capacity to consent.
(d) Application to the trial judge’s reasons
 In light of the aforementioned principles, I turn now to the
reasons of the trial judge with two questions in mind. Did the trial judge properly address the separate issues of consent and
capacity to consent, and more specifically, did the trial judge err
by failing to consider the degree of the complainant’s impairment
 The difficulty with the trial judge’s reasons for conviction
are that he failed to assess whether the degree of impairment by
alcohol was such that the complainant was incapable of consent-
ing to sexual activity. The trial judge was led to this position in
part by the submissions of the Crown suggesting that he did not
have to explore the degree of intoxication versus sobriety:
Mr. Scharger: So your Honour doesn’t really have to, in the Crown’s submis-
sion, delve into degrees of intoxication versus sobriety, at least, insofar as, as
it applies to applying 273.1. Rather, in the Crown’s submission, you’re pre-
sented with a starker choice, of either accepting C.’s evidence, which was that
she was quite intoxicated — in the Crown’s submission, if you accept her evi-
dence, it’s, it’s pretty much a given that 273.1 will apply on the basis that she
was incapable. On the other hand, the other stark choice you’ve been given is
F. telling the court that she was as sober as when she appeared her in court.
So by that assessment of things, if you do conclude that that’s the case, then
273.1 would have no application whatsoever. So I just thought I’d mention
that, Your Honour, in terms of framing the legal analysis in this case.
THE COURT: So you’re saying it’s more an issue of credibility?
2 In R. v. Jensen,  O.J. No. 1514, 106 C.C.C. (3d) 430 (C.A.), this court
held that findings of incapacity to consent and of non-consent were mutually
exclusive, however this analysis has been overtaken by Ewanchuk.