Comment: Whether asleep, or passed out, or incapacitated due to dementia, denying an individual the ability to give consent beforehand is a great imposition on a Charter right. For such an imposition to be lawful, it must pass stringent legal tests, one of them being that the law goes no further than absolutely necessary to achieve a necessary goal. Another test is that there is no other way to achieve the goal that infringes less on the right.

I don't see how criminalizing adults acting on consent to sex in the above situation comes within a country mile of passing those tests.