I’d like to thank James Anderson for publishing a slightly abridged version of this column on National News Watch.

Introduction

Proponents of democratic reform in Canada focus their efforts at the federal level and have overlooked Canada’s most populous province. However, the Government and Legislature of Ontario have perverted Responsible Government and deviated from necessary and proper federal practices and customs with respect to prorogation, delegated legislation, and the confidence convention.

In Ontario, prorogations do not occur along intersessions of 40 days as at the federal level; instead, prorogations come with unspecified intersessions, and McGuinty’s lasted from 15 October 2012 to 19 February 2013. The Legislature of Ontario sometimes abdicates its own law-making authority to the executive through delegated legislation. The bill that imposed new contracts on teachers included a sleeper-cell clause, “This act is repealed,” which the McGuinty government promulgated while the legislature was still prorogued. Finally, the Legislative Assembly of Ontario has severely restricted its own freedom of action with respect to motions of non-confidence through its own Standing Orders.

The Confidence Convention

Responsible Government means that Ministers of the Crown take responsibility for all acts of the Crown and that the Governor acts on, and apart from exceptional circumstances, in accordance with the advice of Ministers. The Ministry must also retain the confidence of the elected Assembly in order to remain in office. If the Assembly withdraws its confidence from the Government, the Premier must either advise the Lieutenant Governor to dissolve the legislature, or resign.

But the Legislative Assembly of Ontario has severely restricted its own freedom of action with respect to motions of non-confidence through its own Standing Orders and has voluntarily given the Government too much power over a legislative privilege.

At the federal level, a vote of confidence generally includes the Address in the Reply to the Speech from the Throne, supply bills, any government bill that the government deems a matter of confidence, or a motion of non-confidence itself. Theoretically, the Government could accept the Opposition’s amendments to a supply bill and thus retain the confidence of the Assembly, but Governments in Canada have generally taken a hard line on this class of confidence vote. The Government judges when it has lost the confidence of the Assembly on some votes, but the Assembly determines when it has withdrawn confidence from the Government on an unambiguous motion of non-confidence.

Standing Orders in Ontario

The Standing Orders of the Legislative Assembly of Ontario have all but banned the fourth category of confidence vote and restricted the Assembly’s power to withdraw its confidence from the Government of Ontario.

First, section 43 forbids the Opposition from introducing a motion of non-confidence (under the older term “motion of want of confidence”) on an Opposition Day. It states, “Opposition Day motions […] shall not be motions of want of confidence in the government.” The Standing Orders of the Legislative Assembly of Ontario provide for ten Opposition Days per calendar year. This strange rule contradicts the very concept of the Opposition Day (also known as a “Supply Day” or an “Allotted Day” in the Parliament of Canada), which normally refers to a day on which the Opposition, rather than the Government, chooses the topics for debate. In contrast, the Standing Orders of the federal House of Commons provide for 22 “Allotted Days” per calendar year with no restrictions on what motion the Opposition MP can table. While the Government of Canada can alter the scheduling of Allotted Days as a tactic against the Opposition, nothing in the Standing Orders of the House of Commons prohibits the Opposition from introducing a motion of non-confidence in the Government.

Second, section 44(a) of Ontario’s Standing Orders limit the Opposition’s latitude yet further. The Official Opposition can introduce no more than three motions of non-confidence per session, and the second largest party in opposition can introduce no more than two per session. Sessions in Ontario often last for two years. (An adjournment ends a sitting, a prorogation ends a session, and a dissolution ends a parliament). Worse still, section 44(b) effectively empowers the Government to veto altogether holding a vote on the motion of non-confidence, because the Assembly can only vote on the motion “at a time allotted by agreement of the House Leaders of the recognized Parties.” In other words, the Government decides when the Legislative Assembly may attempt withdraw its confidence. Even if the Government House Leader agreed to such motions of non-confidence, the Opposition could quickly use up all of them if the Government wins each vote.

The Legislative Debates

The legislative debates in May 2013 have shown the consequences of this policy. Premier Wynne inherited her Liberal minority government from her predecessor Premier McGuinty. Wynne has since admitted that the McGuinty government cancelled the construction of powerplants for political reasons in 2011, which cost Ontarian taxpayers at least $585 million in penalties. The Wynne government still has yet to pass a budget but recently secured the support of the New Democrats. The Conservatives, being the Official Opposition, introduced a motion of non-confidence in the Wynne government, which in turn has invoked section 44 and refused to put the motion of non-confidence to a vote.

On 29 April, the Conservatives filed their motion of want of confidence, and it has sat on the Order and Notice Paper ever since. The Conservatives condemn the cancellation of the gas plants and the Government’s “prima facie breach of privilege” for not releasing documents on the cancellation of the gas plants and conclude, “the Government has lost the confidence of the House.”

Over the weeks of May 6 and May 13, Conservative leader Tim Hudak and his front bench pressed the Government House Leader and the Premier why the Government would not allow the Assembly to vote on their non-confidence motion. On May 15, the Government House Leader John Milloy praised “the consensus of all the recognized House leaders” required under section 44. Milloy also explained that the Legislative Assembly first adopted the rule sometime under the Davis government (1971-1985). Perhaps this rule helped the Davis government survive through two minority parliaments. Milloy then emphasized that the Opposition would have the chance to vote against the government’s upcoming supply bills “within the next several weeks.”         

Conclusion

In a majority parliament, sections 43 and 44 would rarely become pertinent political issues; even if the Government refused to bring the motion to a vote, its single-party parliamentary majority would virtually guarantee that it retains the confidence of the Assembly. But the confidence convention becomes more significant when a volatile minority parliament could easily withdraw its confidence from a single-party minority government – particularly one plagued by scandal.

The Standing Orders have distorted and place unwarranted restrictions on the confidence convention in Ontario and ensured that the Government only loses the confidence of the Assembly of its own terms and not the Assembly’s. The Assembly could only withdraw its confidence from the Government on the Address in Reply, supply bills, or government bills that the Government deems matters of confidence. Sections 43(b)(vi) and 44(a) of the Standing Orders have destroyed spontaneity by unduly restricting what the Opposition can do on Opposition Days and by allowing the Government to bide its time if it fears a loss of confidence.

The Wynne Government used section 44 to shield itself against a vote of non-confidence and bought itself enough time to remain in power until at least the fall of 2013. The Conservatives introduced a motion of non-confidence in an effort to force an early dissolution and fresh elections, which gave the New Democrats the balance of power. After playing coy with the Assembly and media for several weeks, New Democratic Leader Andrea Horwath announced on May 21 that her party would support the Wynne Government’s upcoming budget.

It is therefore reasonable to conclude that section 44 of the Standing Orders helped keep Premier Wynne’s Liberal minority government in power, because the Government’s refusal to call the vote on the motion of non-confidence after it sat on the Order and Notice Paper for weeks allowed the New Democrats to extract concessions from the Liberals.

But if the Assembly had voted on the Conservatives’ non-confidence motion at the beginning of May, the New Democrats would have found supporting the Liberal minority government politically unpalatable after criticizing its scandals and receiving no budgetary concessions in return.

The Opposition should more certainly be able to introduce a motion of non-confidence on an Opposition Day, and the Assembly should not require the Government’s permission in order to vote on a motion of non-confidence. At its next review of its Standing Orders, the Legislative Assembly should follow the recommendation of Conservative MPP Randy Hillier and repeal sections 43(b)(vi) and 44 because they give the Government unwarranted control over a legislative privilege.

Perhaps the Legislature and Government of Ontario have gotten away with the poor practices on duration of prorogation, legislative drafting, and the confidence convention because the simple amendments that could fix these three problems do not lend themselves to broader rallying cries or catchy media lines. But sometimes simple changes prove the most effective.

I’d like to thank Utsav Sanduja for alerting me to sections 43 and 44 of the Standing Orders.

Similar Posts:

• The Confidence Convention
• Parliamentary Reform
• A Law Can Be Repealed When Parliament Is Prorogued?
• McGuinty Had Every Right to Prorogue
• The Wrong Way to Limit Prorogation