That passage illustrates the basic principle which lay at the root of the rule which newspaper editors and reporters knew and understood in an earlier time. The principle was that cases must be decided in open court and that no one had the right to seek to influence the result by comments or statements out of court. The principle has been effectively watered down to the point where on any given day one can see, hear or read a barrage of ex parte statements relating to the subject matter of the cause. That aspect of the right to a fair trial seems to have been lost sight of. Perhaps, as many in the media seem to think, that is what was intended by the decision in Dagenais v. CBC, 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835. But one hopes that the Charter, which in other contexts is recognized as guaranteeing the right to a fair trial, can be interpreted as allowing that right to have some effect even if that requires imposing some limits on the media’s freedom of expression.
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