How

Can Toronto really legally become a province?

Of course it can. Provinces have been created before and they will again. Part V, section 42 (1) (f) of the Constitution Act, 1982 states that an amendment to the Constitution of Canada regarding the establishment of new provinces may be made only in accordance with the procedure found in section 38 (1) of the Constitution Act, 1982. Section 38 (1) requires that amendments to the constitution must have the authorization of the House of Commons, the Senate and at least 2/3rds of the provinces. The 2/3rds of the provinces referred to in section 38 shall include 7 of the 10 provinces and 50% of the population of Canada. You may have heard of this referred to as the 7 – 50 formula. On first blush this may appear to be the formula necessary to create a new province. However, there may be an easier way.

It has been argued by eminent constitutional scholars in Canada that the effect of section 42 (1) (f) of the Constitution Act, 1982 is not to devise a new formula for creating provinces but rather to protect the current method of creating new provinces. In other words you need to satisfy the 7 – 50 formula, not to create a province, but to change the method for creating new provinces. On a plain reading of the section it does seem to be borne out.

42. (1) An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38 (1): (f) notwithstanding any other law or practise, the establishment of new provinces. [See Note 1 below] It is amendments relating to how you establish new provinces, not new provinces, with which section 42 (1) (f) is concerned. So, if that is not how you establish new provinces, then how do you? Well, sections 2 and 3 the Constitution Act, 1871 deal with the creation of new provinces. They provide that Parliament can, with the consent of the legislature of any province, increase, diminish, or otherwise alter the limits of that province with the consent of only that province. They also provide that Parliament can establish new provinces in any territories that form part of the Dominion of Canada and that are not included in any other province. Again, this requires the consent of only the province or provinces affected. [See Note 2 below]

If that is still in effect, which it appears to be, this means Parliament can diminish the size of a province, let’s say Ontario, such that Toronto no longer forms a part of Ontario. Parliament can then create a new province out of this Dominion of Canada land (Toronto) that is not currently included in any province.

This must be what was intended by the drafters of the Constitution Act, 1982 because the Constitution Act, 1982 does not repeal the Constitution Act, 1871. Sections 2 and 3 of the Constitution Act, 1871 are still good law in Canada. If the Constitution Act, 1871 is still good law then the first interpretation of section 42 (1) (f) must be wrong. Otherwise, section 42 (1) (f) of the Constitution Act, 1982 would contradict sections 2 and 3 of the Constitution Act, 1871 and surely the drafters, in all their wisdom, intended our Constitution to be internally consistent.

The method of creating new provinces in sections 2 and 3 of the Constitution Act, 1871 is essentially, give or take a some UK legislation, how British Columbia, Alberta, Saskatchewan, Manitoba, Prince Edward Island, New Brunswick and Newfoundland became provinces.

The upshot of all of this is that instead of needing the approval of 7 provinces and 50% of the population, all you need is Queen’s Park and Parliament, and presto, Toronto is a province.

Either way, it can be done.

What if the provinces or federal government refuse to negotiate with us?

Legally, the province (s) and the federal government would have to negotiate with Toronto if a clear expression of Toronto’s desire to become a province were expressed. This is what the Supreme Court of Canada said in 1998 in the Reference Re: Secession of Quebec [Hereinafter Secession Reference]. [see Note 3 below]

In that case the court addressed the issue of secession of a province from a state. It was the first time the Supreme Court of Canada had addressed this issue.

In looking at the case the court focused on the constitutional principles of federalism, constitutionalism/ the rule of law, democracy and respect for minority rights. The court described these constitutional principles as “the vital unstated assumptions upon which the text is based”. [See Note 4 below] The courts used these constitutional principles to come to their position on secession.

The court stated that the upshot of these principles was that the clear expression of a population’s desire to pursue secession would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes and to respond to that desire. In other words, provincial governments and the federal government have an obligation to negotiate with a population that clearly wishes to separate.

The Secession Reference case is a template for secession. The particular facts in the case dealt with Quebec’s desire to separate from Canada. However, the principles are not limited to Quebec or to provinces. The court defined secession as “…the effort of a group or section of a state to withdraw itself from the political and constitutional authority of that state…” (Note 2 – par 83) The court used broad language capable of being adapted to an analogous situation such as a city separating from a province.

The court went on to discuss the relevant standards applied in international law. The court reminded us that international law grants rights of self determination to “peoples”. The court acknowledges that the precise definition of “people” in international law is not clear, what is clear is that a “people” are not necessarily a state or a province but may be a portion of a state or a province. [See Note 5 below] I am not suggesting that Toronto necessarily could fit such a definition. Rather, I am suggesting that the court does not expect secessionist movements and the applicable principles to be restricted to provinces.

Whether it is a province or a city, the court’s concern was not with the legal status of the group or section of a state seeking secession. The court’s concern was with the legitimacy of the movement. The court’s concern was whether the population’s desire to secede was clearly expressed. If it was (in a referendum for example) then the federal government and province (s) must respect it and negotiate, in good faith, with the intention of making it happen.

Are the 4 constitutional principles (federalism, constitutionalism/ the rule of law, democracy and respect for minority rights) relied on by the court consistent with a city separating from a province? I will not discuss the principle concerning respect for minority rights as I do not believe that principle has a strong bearing on these issues.

Federalism Principle

The federalism principle holds that political power is shared by two levels of government: the federal government and the provincial governments. Each has their respective spheres of influence.

The court in Secession Reference described federalism as a political and legal response to underlying social and political realities. [See Note 6 below] This is important because significant social, political, economic, demographic and cultural changes have occurred in Canada since Ontario’s role in Confederation was established in 1867. If federalism was intended to be responsive to the social and political realities then there must be a means by which the federal structure of Canada can change when the social and political realities change.

Further, the court in Secession Reference found that federalism facilitates democratic participation by distributing power to the government thought to be most suited to achieving the particular societal objectives. [See Note 7 below] If the government most suited to achieving societal objectives changes then presumably there must be a means to implement a change to the federal structure.

The federalism principle provides great power to the provinces. It was set up this way because it made the most sense based on the way Canada was in 1867. But the federalism principle holds that if Canada changes significantly then the division of power amongst the governments must reflect those changes.

Constitutionalism and the Rule of Law

Constitutionalism provides that our Constitution is the supreme law in Canada. The rule of law provides that the law is supreme over both state and individual. All public power must find as its ultimate source in a legal rule. The rule of law requires the creation and maintenance of a set of laws. The rule of law is designed to furnish our citizens with a stable, predictable and ordered society in which to conduct their affairs. It is to protect against arbitrary state action. [See Note 8 below]

It is these twin principles which would bind the federal government and the province (s) to negotiate with a city such as Toronto that had clearly expressed its desire to separate. It would be these twin principles which would prevent a sitting prime minister and/ or premier (s) from stonewalling a legitimate movement for a Province of Toronto. These twin principles say that the ultimate authority in Canada is not the prime minister and it is not the premier. It is the constitution.

Democratic Principle

The court in Secession Reference describes the Canadian tradition as being “one of evolutionary democracy moving in uneven steps toward a goal of universal suffrage and more effective representation”. Clearly the court is contemplating further future changes to our institutions which will provide for even more effective representation. The court discussed the evolution of our democratic traditions from the Magna Carta to the English Bill of Rights of 1689 to the emergence of representative political institutions in the colonial era to the development of responsible government in the 19th century and finally to Confederation itself. [See Note 9 below] The court does not attempt to limit what these future changes might be and how they might be initiated. If anything by listing such diverse examples of democracy’s evolution the court is suggesting that there are many different means by which more effective representation may come to Canada.

The court goes on to say:

“Finally, we highlight that a functioning democracy requires a continuous process of discussion. The Constitution mandates government by democratic legislatures, and an executive accountable to them, resting ultimately on public opinion reached by discussion and the interplay of ideas” (Saumer v. City of Quebec, supra, at p. 330). At both the federal and provincial level, by its very nature, the need to build majorities necessitates compromise, negotiation, and deliberation. No one has a monopoly on truth, and our system is predicated on the faith that in the marketplace of ideas, the best solutions to public problems will rise to the top. Inevitably, there will be dissenting voices. A democratic system of government is committed to considering those dissenting voices, and seeking to acknowledge and address those voices in the laws by which all in the community must live.” [See Note 10 below]

The court is saying that if elevating a city’s status to province makes sense (socially, politically, economically, demographically, and culturally) and the support for doing so has been clearly expressed then the means to do so is there.

Progressive Interpretation or The Living Tree

In understanding the road Toronto would take in seeking provincial status the doctrine of progressive interpretation must be considered. This doctrine stipulates that the general language in the constitution is not to be frozen in the sense in which it would have been understood in 1867. The idea underlying this doctrine is that the Constitution, although a statute, is not a normal statute. It is an organic statute which has to provide the basis for the government of a nation over a long period of time. It differs from an ordinary statute in that it cannot be easily amended when it becomes out of date.

Over the years this doctrine has been applied in many cases. The cases shed light on the principle. The cases are also interesting in their own right. Many of the cases stand on the side of a more progressive society. They reflect the growth and development of Canada.

In 1930 in a landmark case the Privy Council, our then highest court, held in Edwards v. AG wrote, “The BNA Act planted in Canada a living tree capable of growth and expansion within its natural limits.” [ See Note 11 below] This case is also known as “the Persons Case” because it established that women were ‘persons’ for the purposes of the Canadian Constitution and its provision on appointments to the Senate. Today this seems ridiculous. But in 1928 the Supreme Court of Canada had just ruled that women were not persons. The Privy Council took this progressive step based partially on the doctrine of progressive interpretation.

In 1947 the Privy Council in A.G. Ontario v. A.G. Canada [ See Note 12 below] addressed the question whether the Parliament of Canada had the power to grant to the Supreme Court of Canada the ultimate appellate authority in Canada. In discussing the issues the court said, “It is, as their Lordships think, irrelevant that the question is one that might have seemed unreal at the date of the B.N.A. Act. To such an organic statute the flexible interpretation must be given that changing circumstances require…”. The Privy Council held that it was within Parliament’s authority to imbue the Supreme Court of Canada with ultimate appellate authority.

In 1979 the Supreme Court of Canada in AG of Quebec v. Blaikie [See Note 13 below] looked at section 133 of the BNA Act. The Quebec government had just enacted language laws which limited courts and administrative bodies to the use of the French language. Section 133 of the BNA Act granted various language rights to courts but not to administrative bodies. The court pointed out that non-curial adjudicative agencies (or administrative bodies) were not in existence in 1867. The court went on to discuss the need to give the constitution “a broad interpretation attuned to changing circumstances”.

If a constitution is going to stand for hundreds of years it will only do so if it is given a broad interpretation attuned to changing circumstances. One of the most significant changes in Canada since 1867 has been the emergence of the city as a social, cultural and economic engine. As the Privy Council said in AG Ontario v AG Canada, it is irrelevant that this issue might have seemed unreal in 1867.

Without an iota of doubt, the legal means to make Toronto a province exists in Canadian law. The process is not contingent on the potentially arbitrary whims of elected officials. The process can not be shut down because a premier or prime minister does not like it. The process is contingent only on the merits of this historic step and the genuine, clearly expressed desire of Toronto’s population to pursue it.