What is the necessity criterion in a co-conspiracy case?
Ontario, Canada
The following excerpt is from R. v. Barnes, 2007 CanLII 3223 (ON SC):
The necessity criterion is flexible and includes many circumstances. When considering the necessity criteria in a co-conspiracy case, “[t]he issue is the availability of the testimony, not the availability of the witness”. (See R v. Pilarinos [2002] B.C.J. No. 1324 at para 14.) As the following cases explain, the co-conspirator may be physically available but the testimony is rarely available.
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