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At the same time, the court cannot bring itself to believe the section prohibits all barriers to internal trade, not least because the provinces, pouring through the gap left by Gold Seal, have erected so many. “If to be ‘admitted free’ is understood as a constitutional guarantee of free trade,” it gulps, “the potential reach of s. 121 is vast.”

Photo by Justin Tang/The Canadian Press/File

The same potential for upheaval, it is worth noting, did not prevent it from discovering, in past decisions, a constitutional right to secede, or a constitutional right to strike, both more or less out of whole cloth; neither did it trouble it unduly in the Singh or Jordan decisions, or when it was rewriting much of the country’s laws on divisive social questions.

But never mind. The court is surely right to say the provision could not have been meant to apply to any and all provincial laws that have any impact on trade, no matter how trivial the infringement or how vital the legislation’s purpose. But a common-sense reading of the text would also suggest the bias was intended to be in favour of openness.

So when the court distinguishes between laws whose “essence and purpose” is to restrict trade between the provinces, and those where that is only the “incidental effect,” it is not far off. It is everything that comes after that’s the trouble.

Rather than put the onus on the provinces to justify a law that restricts trade, the court would oblige complainants to show that restricting trade is not just its purpose, but its “primary purpose.” All the provinces would have to show is that the law is “rationally connected” to some other purpose — any purpose will do.