That's right. If you look at the jurisprudence, the case law around incapacity right now, it's not a very clear threshold. It's a difficult one to meet.
I think courts often struggle with whether there is a difference between the capacity to say yes and the capacity to know that you don't want to be touched. I think the former is a much higher level of functioning. We're already struggling with those kinds of decisions, courts holding the complainant who gets voluntarily intoxicated to a higher standard than someone who is involuntarily intoxicated.
I worry that the insertion of a separate provision dealing with unconsciousness—it's always been the common law that someone who's unconscious is not capable of consent—muddies the waters and makes the application of what will remain, the incapacity provision, even more fraught than it already is. I don't think it accurately captures the full breadth of the decision in J.A.