Law360 Canada (May 9, 2024, 2:20 PM EDT) -- Appeal by Jajja from his conviction for sexual assault. There was no dispute that a sexual encounter occurred between Jajja and the complainant. At trial, Jajja maintained that the sexual activity was consensual. The complainant testified that she had no memory of the events that occurred between her attendance at the nightclub and waking up alone the next morning in the hotel. In convicting Jajja, the judge found that the complainant was incapable of consenting at the time the sexual activity occurred. She concluded that the complainant suffered a blackout and had no memory of the events. The judge addressed the interplay between intoxication and incapacity. She noted that intoxication could result in incapacity to consent to sexual activity, although this was not invariably the case. On appeal, Jajja alleged that the judge erred in finding that the complainant lacked the capacity to consent to the sexual activity, and in relying on a theory that was not put to Jajja in cross-examination....