The stipulation that no consent is obtained where the complainant is incapable of consenting (s. 273.1 (2)(b)-RRB-
suggested that «Parliament was concerned that sexual acts might be perpetrated on persons who do not have the mental capacity to give meaningful consent», including persons who were
unconscious, again indicating that consent was intended to mean «the conscious consent of an operating
mind» (at para. 36, citing Esau).