So what if Toronto became a province? Why would that be a bad idea? Regardless of the arguments for and against, Toronto can never become a province unless there is a lawful way to that goal, and there are several. In any case, separation will require a referendum in the city. If Toronto wishes to leave, Ontario will have to start good-faith negotiations. And even if the talks break down, there seems to be a constitutional way for Toronto to become a province without Ontario’s consent.
First, any decision to separate will require a referendum in Toronto. Just a vote in the city council will not be enough because the issue is so momentous. We have some legal precedent on this issue because the independence question was raised in referendums several times in Quebec. In the Reference re Secession of Quebec, the Supreme Court said that a successful referendum will give necessary legitimacy to Quebec government’s effort to secede. I don’t see any other way to give legitimacy to the effort of Toronto to form its own province.
Second, if the people of Toronto say yes to becoming a province in a referendum, Ontario will be under an obligation to negotiate with representatives of the city. This also follows from theReference re Secession of Quebec. The difference, of course, is that Quebec has original sovereignty as a province, and the City of Toronto is legally a creature of an Ontario statute. But in essence, the same principles should apply: if a huge number of people in a large community want something, the government should listen and talk. Besides, Toronto is not just a city: it’s older than both Ontario and Canada. Its population and economic output are bigger than population and GDP of nine Canadian provinces. It’s a critical part of the country, and if it speaks loudly about its own destiny, Ontario has a legal duty to negotiate.
There are at least three possible outcomes of these negotiations:
1. The Legislative Assembly of Ontario passes a law granting unique and broad powers to the City of Toronto. The new authority should approach that of a province. The law should be a super-statute like the Ontario’s Human Rights Code. It should prevail over any other Ontario law. The problem with this solution is that Queen’s Park will keep the power to change or repeal this statute despite its “super” attribute. Unless there is way to bind the Ontario legislature with stringent amendment limitations like those found in the Canadian constitution, the super-statute will last only as long as the political will of the provincial parliament.
2. Ontario adopts a written constitution with amendment restrictions similar to those of the federal constitution. The new powers of the City of Toronto become a part of the Ontario constitution subject to amendment only in rare cases of clear consent of a great majority of Torontonians and Ontarians. I have no idea how to make this work. When Canada needed a constitution binding on its own parliament, it had to ask the UK parliament to pass a special law. It’s unclear how the federal parliament could play the part the UK parliament once played for Canada, because a future Ontario government could challenge that intervention on federalism grounds. How a province can adopt a binding constitution is a great topic for legal scholars, but I don’t see a practical way to do it.
3. Canada amends its own constitution making Toronto a full province. That’s the best way for the city. It will ensure more legitimacy and legal certainty so Toronto can focus on its future instead of endless litigation with Queen’s Park. Sections 42 and 38(1) of The Constitution Act, 1982 set the procedure for forming a new province: consent of the Parliament of Canada and legislatures of at least two thirds of Canadian provinces that together have at least half of Canada’s population. In my reading of the Constitution, Ontario’s consent won’t even be necessary, but if Ontario says no, then Quebec’s and probably BC’s yes will be required. Imagine the headlines: “Quebec helps Toronto secede from Ontario!”
Hopefully, it will not come to this, and the growing crisis in the relations between Toronto and Ontario will be resolved. But if Toronto is determined to get a special status to reflect its role in Ontario and Canada, it certainly has lawful paths to that objective. What’s needed is the political will on both sides.