Mr. Scharger: Very much so, as, as opposed to assessing [the] degree of how
drunk or not drunk she was.
THE COURT: I don’t see a big difference in your position, in that respect,
from that of the position that’s been set out by the defence. It’s, it’s, it’s, it’s
a case of credibility.
Mr. Scharger: Yes, sir.
THE CROWN: She was either too impaired, or she wasn’t.
Mr. Scharger: Agreed.
 The trial Crown did argue in his submissions that the
complainant would not have consented to sexual contact with the
appellants for a variety of reasons such as the difference in age,
the fact she hardly knew them and the fact that they were her
mother’s friends. However, he did not invite the trial judge to
convict on the ground that the complainant did not in fact consent to sexual contact, separate and apart from the issue of
whether or not the complainant had the capacity to consent.
 This blending of the issues as to whether the complainant
consented, and whether any consent was vitiated by a lack of
capacity is mirrored in the trial judge’s reasons for judgment, at
paras. 51-52, 71-73:
The main issue in this case is one of credibility. The parties agree that
G.F. and R.B. engaged in sexual relations with 16yearold C.R. If I find
beyond a reasonable doubt that C. was unable to provide her consent to this
sexual activity because she was impaired by alcohol consumption and that
G.F. and R.B. knew or should have known that she was unable to give her
consent, then they are guilty of the charges against them. If I find that C.’s
ability to give consent was not impaired by alcohol consumption and that
she freely gave her consent, then the two accused persons are not guilty.
I have considered the evidence and the submissions of counsel, and after
doing so I have concluded that C.R. did not consent to the sexual activity, and
that G.F. and R.B. are guilty of the offence of Sexual Assault.
R.B. did not testify. I find G.F.’s evidence to be unbelievable. It does not
leave me with reasonable doubt as to his or R.B.’s guilt, and in my view, the
balance of the evidence at trial convincingly supports the conclusion that F.
and B. forced C. into having non-consensual sex.
Section 273.1(2)(b) of the Criminal Code indicates that no consent is
obtained when the complainant is incapable of consenting to the activity. This
applies in instances where a complainant is intoxicated.
Accordingly I find the two accused guilty of sexual assault as charged.
 The manner in which the reasons are structured leaves me
uncertain as to whether the trial judge considered the issue of
consent separately from the issue of capacity. It is clear that the