Marking key mid-term
There are many ways to analyze a fact pattern well and effectively. There is not a certain number of
issues you need to spot in order to be given a satisfactory mark. You should, however, analyze the main
and important issues, which you have spotted, in depth.
a) For all three fact pattern questions, students were graded on the following aspects:
1) Spots issues effectively
2) Utilizes and applies criminal law, case law and facts effectively
3) Reasoning and Persuasiveness
4) Style, clarity and structure
b) General advice for the final exam
1)Making extensive use of the criminal code and adopting a ‘deductive’approach: (a) Looking at the
issue at question in an abstract and general manner. For example, what constitutes detention? What does
detention mean? Physical, psychological? (b)Applying the facts of the case to the legal test/case law
(subsuming the facts).
2)Always be as specific as possible. For example, at what point exactly was the accused detained? Why?
Are we talking about psychological or physical detention?
3)When reading the fact pattern, always keep in mind that every sentence has a particular meaning and is
in there because of a particular reason: Try to spot all relevant issues!
4)Making extensive use of the case law and the legal tests.
5)Meaningful analysis and making extensive use of the facts:Analyzing the facts!
c) Issue spotting
List of legal issues/cases to discuss and analyze. This does not present an encompassing list of issues and
problems. However, students were required to name these issues, analyze them in depth, and refer to the
respective case law in order to receive a grade of 70 – 73 %.
The points given for each section depend on the depth of analysis and the ability to apply a new situation
to the legal tests. (1) 20 points
- detention: restraint short of arrest; different forms of detention: physical and psychological (case law,
e.g. Therens; Bazinet, Mann, and application of facts)
- analysis regarding the exact time of the detention (!)
- requirements of a lawful detention (conduct within the general scope of duties; 'articulable' cause or
reasonable and probable grounds) --> apply to fact pattern
- Waterfield Test (Clayton): (1) Police acting in the course of their duties (2) “totality of the
circumstances” (seriousness of the offence, information known to police (analyze tip!!!),
geographic/temporal scope of detention, risk to public safety) -->Analysis of the Waterfield Test and all
- duration of detention; reasons given for detention
–state legal requirements for a lawful search --> What constitutes legal searches (see class 6, slide 12)
When does a police officer have the power to search someone and someone's belongings?
–RPG --> validity of tip (Debot)?
–section 8: reasonable expectation of privacy regarding the search of the car (analyze)
–case law to take into consideration: Cloutier vs Langlois; Caslake (search incident to arrest), Collins
–Did the suspect consent to being searched?
–sec. 24 (2) -->An unlawful search does not automatically lead to an exclusion of evidence found during
–Explain Grant test in detail!!!
–-->Analyze admission of passports, iPad, statement in depth --> What is different about these forms of
–--> Balance all three aspect of the Grant Test to analyze whether or not the administration would be
brought into disrepute
Q1 -- Entrapment
• According to R. v. Mack, entrapment can be established in two ways: (1) random virtue testing – i.e.
the police provide an opportunity to commit an offence without a reasonable suspicion that the person
is already engaged in criminal activity or without acting pursuant to a bona fide investigation; or (2)
the police have reasonable grounds to suspect but they go beyond providing the target an opportunity