trial judge did not engage the two-step analytical process I have
articulated in these reasons, by first evaluating whether the complainant did not consent and then turning, if necessary, to whether or not the complainant had the capacity to consent. He also did
not apply the jurisprudence discussing the level of intoxication
which could result in a finding of incapacity, if it were necessary
to go to that step. His statement that no consent is obtained
where a complainant is intoxicated suggests that in his view, any
level of intoxication was sufficient to vitiate consent. It is not
clear that this belief did not constitute the basis for his statement
that there was no consent.
 Although the trial judge states, at para. 52, that he “
concluded that C.R. did not consent to the sexual activity” and, at
para. 71, that “the balance of the evidence at trial convincingly
supports the conclusion that G.F. and R.B. forced C.R. into having
non-consensual sex”, the convictions cannot be upheld on such
a basis. First, as discussed above, the trial Crown did not invite
the trial judge to convict on this basis. Second, the vague statement from the trial judge that the “balance of the evidence” at
trial supports such a finding is not a sufficient basis to ground
a conviction; it is not clear the trial judge was making a finding
that the convictions could be sustained on the basis that the complainant did not consent, regardless of her capacity.
 In view of these errors, I would set aside the convictions
and order a new trial. It is not necessary to consider the other
arguments raised by the appellants.