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.