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.