THE DILUTED ROLE OF THE BACKBENCHER IN POLITICS: HOW DID WE GET HERE AND DOES IT

NEED FIXING?

by

Mitchell Davidson

MA Political Science, University of Western Ontario Director of Policy and Legislative Affairs Office of the Leader of Her Majesty’s Loyal Opposition 200 North Wing Queen's Park , Ontario M7A 1A1

Phone: 416-326-6412 (O)

Email: [email protected]

Paper presented at the 2017 Annual Meeting of the Canadian Political Science Association, Toronto, Ontario, Tuesday, May 30th, 2017.

Draft, Do Not Cite

Everyone who runs for office does so because they believe that being a Member of Provincial Parliament (MPP) means they can affect change for the better. Despite this common desire, the ability for individual backbench members to affect policy change is considered weak at best by those who study it. Alison Loat and Michael MacMillan described Canada’s democracy as failing after they interviewed 80 federal politicians about their abilities as parliamentarians.1 Michael Atkinson argued that most parliamentarians are frustrated and unenthusiastic about the prospect of doing legislative work and instead prefer constituency work.2 Kelly Blidook found that the ability for individual members to impact change was quite poor, even titling a chapter of his 2012 book “Does it Matter? Do Members of Parliament Influence Policy?”3 Even as far back as 1987, C.E.S Franks suggested most complaints about parliament stem from party control, the inability to affect policy change through parliamentary institutions, and the lack of influence from individual members.4

The inability for an MPP to affect change may be apparent in the various literature, but nearly all the literature is specific to the Federal Parliament. Though the House of Commons is inherently like Queen’s Park, it is possible that Ontario’s legislators may be more effective. This leads to the question, does the idea that parliamentarians have little impact on policy hold true in Ontario? Has this impact on policy – or lack thereof – fluctuated over time? If so, why has an MPP’s ability to affect change fluctuated? And, lastly, are these changes beneficial for the workings of the provincial ? Based on the answers, recommendations for improving the legislature and addressing the ability for MPPs to impact public policy in Ontario can be put forward.

Methodology

Change is not a metric that can be easily defined. By its definition, policy change can only be evaluated once the debate has entered the public consciousness. Essentially, the Government must change its public position to be noted. For example, if the current Premier did not previously denounce a foreign homebuyers tax before announcing she would implement such a policy measure, we would not have noticed the change. Therefore, if we are assessing an MPP’s ability to impact change, we can only truly quantify this impact through the changes in a Government’s public positions.

Secondly, any stakeholder concerned about policy can issue a press release or hold a news conference, but only an MPP can use the legislature to attempt to affect change. Therefore, if we are attempting to evaluate the ability of a parliamentarian to affect change, we are really evaluating the ability of MPPs to use the legislature to their advantage, making the institution and the rules that govern it critically important.

It is also important to note that there are private avenues that may be available to an MPP because of their role that are not public, and thus will not be evaluated in this paper. For example, every

1 Alison Loat and Michael MacMillan, Tragedy in the Commons: Former Members of Parliament Speak Out About Canada’s Failing Democracy (Random House Canada, 2014), title page. 2 Michael Atkinson, "Policy Interests of Provincial Backbenchers and the Effects of Political Ambition," Legislative Studies Quarterly (Vol 3, 1978), 630. 3 Kelly Blidook, Constituency Influence in Parliament: Countering the Centre (Vancouver, University of British Columbia Press, 2012), 96. 4 Loat and MacMillan, Tragedy in the Commons, 7. MPP can converse with Ministers daily. Whether it be the opportunity for an opposition member to access a Minister in private during Question Period, or for a Government member to do so in weekly or committee meetings, the fact that an MPP can be heard by those who make the decisions is important. John Reid even argued that the “…most important debates that you will have [as a parliamentarian] will be behind the closed doors of caucus.”5 Though there is undoubtedly merit to the idea that closed door conversations with Ministers and their staff are vital for evaluating an MPP’s effectiveness, they are nearly impossible to quantify.

Likewise, committee amendments could be considered another tool available to an MPP, but simply evaluating the pass and fail rates of amendments to bills is flawed. The mover of the motion is not necessarily the advocate of the policy change – thus attributing false blame or praise. In addition, the Government amendments are vetted in advance by the executive branch, but must be introduced and passed by backbench members, meaning Government MPPs would appear to control all amendments and have an overwhelmingly large success rate when they attempt to impact policy through committee.

Another caveat is the difficulty in evaluating the effectiveness of a single action by an MPP. For example, in 2013 the Government adopted a Private Members’ Bill, brought forward by opposition MPP , by including the policy in their Local Food Act. This is common knowledge because the Minister responsible directly mentioned Mr. Bailey and gave him credit for bringing forward the idea.6 In that example, the policy influence is easy to evaluate. However, when the same Government reversed course on controversial changes to an autism program, they did not credit an individual MPP despite numerous pleas from both opposition parties. Even though, in the autism example, it is logical to assume the opposition parties helped influence the Government’s decision, that cannot be categorically proven. Therefore, evaluating an MPP’s affect on policy is inherently subjective.

Also, since I serve as the Director of Policy and Legislative Affairs for the Official Opposition (Progressive Conservative Party) it must be bluntly stated that this paper will contain observational evidence from myself and through interviews with senior staff from the Legislative Assembly’s Procedural Services branch. In summation, only avenues that are public and available exclusively to MPPs will be evaluated. These avenues include: Question Period, Members’ Statements, Orders of the Day, Order Paper Questions, and Private Members’ Public Business.

Question Period

The 60 minute back and forth exchange known as Question Period originated as an institution used to gather information from Ministers about Government policies. However, the institution evolved to take on other primary purposes, such as garnering media attention, holding the Government to

5 John Reid, “Democracy in the 21st Century: Advice for Newly Elected Members of Parliament,” Canadian Parliamentary Review (29, No. 1, Spring 2006), 2-3. Reid applied the point to all parliamentarians, but this quote primarily applies to Government members. The ability for an opposition member to influence his party’s future policies is important, but it is not expressly tied to the use of the Legislature thus is outside of this paper’s scope. 6 Hon. Mr. Leal, Legislative Assembly of Ontario Debates (8 June 2016). account, and representing constituent concerns.7 Though it could be argued each of these four objectives of Question Period are - at their core - an attempt to impact policy, the large amount of scholarly work on the topic rarely agrees.8

Despite this lack of focus on policy change, every opposition led question is rooted in some differentiation in policy between themselves and the Government. Franks contends that the questions posed are not intended to change the minds of the Government, but rather change the minds of voters in the next election. He argues that the answers to the questions are inconsequential, implying Question Period is not about achieving policy changes but rather about appearing to advocate for them.9

Franks’ point is driven home by Government backbench questions, which are used not to advocate for policy change but to promote existing Government policies or to discredit opposition policies. The fact that the institution – on both sides – openly promotes and tolerates self- congratulatory or vitriolic questions reinforces the position that Question Period is not a policy focused institution. If there are any policy references, the requests are often phrased sarcastically. For example, how can you evaluate if a question that asks for the Government ‘to start standing up for Ontarians’ or ‘show some compassion for seniors’ achieved its policy goals?

Though Question Period was never a policy led institution, it is important to note that the rule changes in April 1986 made it even less policy driven. These changes entrenched the Leader’s role in asking the first questions for each party and gave Leaders more supplementary questions than standard backbenchers. In October of 1986, television cameras entered the legislature for the first time, making it easier to garner media attention.10 Together, these changes focused the media on the beginning of Question Period, leading Graham White to contend that “To a degree probably unique in Canada, Question Period in the Ontario Legislature is dominated by the party leaders.”11 If Question Period was ever an institution for backbench MPPs to affect change, it certainly was not any longer. This rule change brings forward an important trend when evaluating an MPP’s abilities. Though the goal of these changes was to create a more efficient Question Period, the unintended by-product was to entrench a leader centric institution. All parties agreed to the changes, but they impacted the ability for an MPP to affect change through Question Period. The theme of MPPs’ policy influence being an innocent casualty of broader legislative reforms will be developed throughout. Ultimately, Question Period has become more about presenting a contrast between positions, rather than getting the Government to change their policies. Therefore, though an effective institution for different objectives, the ability for a current MPP to affect policy change through Question Period is lacking. Previous MPPs may have had an easier time before the 1986 changes, but it is widely acknowledged that Question Period is not, and likely never has been, a serious avenue to affect policy change – especially for backbench MPPs.

7 Mitchell Davidson, “The Evolution of Question Period in the Ontario Legislative Assembly: Uniqueness and Utilities,” Canadian Political Science Association Conference (2014), 12-13. In interviews with 51 sitting MPPs, impacting policy was rarely stated as a purpose of Question Period. 8 Ibid., 7. 9 C.E.S. Franks, The Parliament of Canada (Toronto, Press, 1987), 143. 10 Hon. Mr. Nixon, Legislative Assembly of Ontario Debates (14 October 1986). 11 Graham White, The Ontario Legislature: A Political Analysis (Toronto, University of Toronto Press, 1989), 98. Members’ Statements The 1986 rule changes also introduced the concept of Members’ Statements. These are inherently like federal Standing Order 31s, and are a 90 second opportunity for MPPs who are not Ministers or party leaders to discuss any topic. These statements were introduced to crackdown on MPPs making frivolous points of order to recognize constituent achievements and instead gave MPPs an avenue to do so.12 Although the statements themselves could discuss policy matters, they rarely do unless it directly impacts an MPP’s constituency on a local level. Despite the rather pedestrian nature of Members’ Statements, do members in Ontario use them to affect policy change? Federally, some scholars have suggested that Standing Order 31s have become more partisan in nature and less about local praise. Regardless, there is still the overwhelming understanding that Members’ Statements “…may not be deemed particularly ‘important’, in that very little substantive change is likely accomplished through it.”13 In Ontario, there is very little written about Members’ Statements specifically. However, David Docherty opines briefly on their use in different provincial . He observed that some provinces do not have Members’ Statements, limit the time to a fraction of the 15 minutes that is made available in Ontario, or limit content to only local issues with no comments on Government policy.14 Ontario’s limitless Members’ Statements show that MPPs can use these statements to attempt policy change. However, it should be noted that all Members’ Statements are co-ordinated and approved by the respective party house leaders, which is also the case federally.15 This link to the main institution would suggest that MPPs are not able to advocate for policy changes that are not in line with their party’s public positions. For Government MPPs, this overwhelmingly limits the scope of their statements, making Members’ Statements effectively muzzled even though the rules permit a wide scope of topics. For opposition MPPs, they can advocate more openly for policy change through Members’ Statements. Members of the Procedural Services branch suggested that Members’ Statements in Ontario are not very partisan or policy laden in nature.16 Federally, more partisan statements are the norm. This may be because they take place immediately before Question Period, when the legislature is better attended and media are more likely to be watching. In Ontario, Members’ Statements do not begin until the afternoon, well after Question Period has taken place. Without further empirical study of the content of Members’ Statements, the only apparent difference between provincial and federal statements is that Ontario’s version is less partisan and more local in nature. In addition, Members’ Statements could be considered one of the rare times a rule change was made to benefit individual MPPs and has had limited unintended consequences on their

12 Adam D. Macdonald, “Evolution of the Ontario Standing Orders Since 1985,” Canadian Parliamentary Review (34, No. 3 Autumn 2005), 34. 13 Kelly Blidook, “The Changing Use of Standing Order 31 Statements,” Canadian Parliamentary Review (36, No. 4 Winter 2013), 25. 14 David C. Docherty, Legislatures (Vancouver, University of British Columbia Press, 2005), 106. Members’ Statements do not exist in Nova Scotia. Alberta only dedicates 8 minutes twice a week and in Newfoundland and Labrador members cannot comment on government policy. 15 Ibid. 16 Procedural Services Branch Members, interviewed by Mitchell Davidson at Legislative Assembly of Ontario, February 20th, 2017. abilities. Therefore, these statements certainly do fulfill a purpose for an individual MPP, but that purpose is not to affect policy change.

Order Paper Questions Order Paper Questions are a little-known avenue for an MPP to attempt to solicit information from Government Ministers. These written questions cannot be partisan or offer opinion, and must state facts and ask straightforward questions. They are tabled with the Clerks of the Legislature, and published on the order paper until they are answered, which is supposed to be within 24 sessional days. These answers can be quite factual or very limited in nature, and there is no mechanism to ensure the quality of answers are consistent between ministries. These questions would never be used as a tool for public policy change directly, but rather to gather information to support the case for a policy change. An MPP will rarely ask for the Government to explain why one policy is better than another in a written question, instead they commonly ask for information about the negative aspects of a current policy. This is used to help the MPP build a case for policy change. Therefore, it is extremely rare to see Government members file written questions. Currently, written questions must be answered within 24 sessional days. Prior to the early 1990s, answers used to be within 14 calendar days.17 Not only has the deadline to answer questions been extended by Governments past, the amount of questions has been limited as well. In the late 2000s, opposition members tabled as many as 3,000 written questions at once. The Government, in response to the potential workload of answering those questions amended the Standing Orders to limit each MPP to ten questions at a time.18 Regardless of the amount of information that is returned to MPPs, the effectiveness of order paper questions has diminished over time because each MPP has less timely access to this avenue. Like the rule changes with Question Period, the impetus for the change to written questions was not about limiting an individual MPP’s ability to affect change, yet that was the indirect result. Even if, as it has been suggested, the flood of order paper questions at the time was an attempt by the opposition to gain larger policy concessions in the legislature,19 the primary victims of the reforms were individual MPPs. The Government was attempting to remove the opposition’s ability to delay and ended up resolving this issue by incidentally limiting the powers of individual MPPs. Any impact on Government policy through order paper questions – albeit originally small – has been reduced over time as a result. The concept of the opposition using delay as a form of policy protest poses an interesting second theme. Not only is the ability for an MPP to affect change the unintended casualty of repeated rule changes, but the repeated rule changes that impact MPPs appear to continually stem from delay measures used by the opposition themselves. The best examples of this likely come from and former Premier . In 1989, Peter Kormos challenged a ruling by the Speaker of the House, which triggered an immediate vote. Kormos, who was also the party whip, refused to ‘walk the whips,’ which was needed to start the vote. The legislature lost four sessional days to the delay and the Government quickly amended the rules to remove the ability to challenge the Speaker’s rulings. The Government also

17 Mr. Cousens, Legislative Assembly of Ontario Debates (17 June 1992). 18 Procedural Services Branch Members, February 20th, 2017. 19 Ibid. introduced a five-minute divisional bell before most votes instead of waiting on the party whips to indicate they were ready.20 By using one of the few tools available to this individual MPP, all MPPs lost the ability to challenge the Speaker or to delay votes in the legislature. These were potentially valuable tools to affect policy change as they could disrupt the Government enough that the Government would make concessions in exchange for moving their agenda forwards. Another example came in 1991 when then third party leader Mike Harris introduced a bill in the legislature that named every lake, river, and stream in the province in its title. This caused a considerable delay as the title of any new bill had to be read, in full, several times during introduction. This legislative stunt was pulled to protest the NDP Government’s desire not to hold public hearings on the 1991 budget. Harris’ stunt wasted needed legislative time and the NDP Government ultimately agreed to travel the committee in exchange for him abandoning similar tactics. , a Government backbench MPP at the time, later described the compromise by saying, “We got a good chunk of our legislative agenda done in exchange for a couple of weeks of hearings on the budget bill. Was that a bad thing? Absolutely not.”21 However, the Government later amended the Standing Orders to put a time limit on Introduction of Bills so no one could pull the stunt again. Therefore, a change in Government practice was secured by delaying the legislature, but the tool used to secure that change no longer exists for any MPP who may have a legitimate grievance towards a Government initiative. This means current MPPs have less ability to affect change than those before them did. This theme can also be developed through conventional changes to how the legislature operates. When Mike Harris became Premier he introduced controversial legislation to amalgamate municipalities across the province, including the City of Toronto. The legislature went in to Committee of the Whole to debate the changes. The opposition introduced some 13,000 amendments leading to a continuous night and day sitting that lasted 248 straight hours.22 Though an excessive delay of the Government agenda, the opposition disagreed with the policy change being made and used delay tactics as a protest in hopes the Government would abandon its plan. The opposition was unsuccessful in getting the Government to change its mind, however they did use a legislative tool to effectively make their case for change. Since that extreme delay, very few Government’s have entered Committee of the Whole in anyway. Though the rules have not changed to prevent Committee of the Whole in Ontario, it essentially ceases to exist. 23 This is even though Committee of the Whole could be an effective tool for an individual MPP to bring forward amendments to legislation, get the attention of the entire legislature, secure passage of legislation quickly for Government, and – if needed - delay Government business until some resolution was achieved. It has even been argued that Committee of the Whole was the most effective legislative avenue available to an MPP to affect policy change, but that is no longer a reality due to the opposition’s efforts sometime ago.24

20 MacDonald, “Evolution of the Ontario Standing Orders,” 35. 21 Mr. Bisson, Legislative Assembly of Ontario Debates (5 March 2015). 22 Todd Decker, “Legislative Reports: Ontario,” Canadian Parliamentary Review (20, No. 3 Autumn 1997), 34. 23 Legislative Assembly of Ontario. Standing Committee on the Legislative Assembly (1st sess., 40th Parliament, 4 April 2012), M-56. When a Standing Orders review suggested a reform to Committee of the Whole, the Clerk - Deborah Deller - suggested she almost forgot it existed because it has not been used in years. 24 Mr. Bisson, Legislative Assembly of Ontario Debates.

Orders of the Day The two themes – that MPPs are becoming more limited in their ability to affect change because of rule changes and that the purpose of those rule changes was not to limit an individual MPPs influence but rather to limit the opposition from delaying Government business – culminate in an evaluation of Orders of the Day. Orders of the Day, more commonly known as debate, is the opportunity for MPPs from all sides to debate legislation. Through this avenue, MPPs are supposed to use the time to convince each other of the positives or negatives of various Government policy choices. There is no time in the legislative calendar – with the potential exception of certain portions of committee work - that contains more substantive policy debate than Orders of the Day. Prior to 1992, debate in the legislature was relatively free from rules and constraints. There were no time limits on speeches by any MPP, debate only ended on a bill when no new MPPs wanted to speak, time allocation – the practice of strictly scheduling debate so a bill can get through the legislature quickly – did not exist, and third reading debate was practically non-existent. Essentially, the opposition would allow most bills to move through the process quickly, but would debate at length legislation that they found controversial.25 This collegial nature gave way in the early 1990s to a chamber of partisan tactics and delays – including Harris’ run-on legislation title, which “moved the culture at Queen’s Park from civility to direct competition.”26 The NDP Government, faced with considerable opposition to implementing its agenda, introduced new Standing Orders that brought time allocation to Ontario and placed time limits on MPP speeches. These changes have been called some of the most sweeping ever and removed the ability for Harris, or any future opposition Leader, from significantly delaying Government business.27 Again, the theme of opposition parties tempting the Government to limit their powers presents itself. David Docherty opined on this very trend by stating that members must scrutinize and present alternatives to Government direction. If opposition members “bypass these opportunities, or use them to further purely partisan ends, the best rules are essentially impotent.”28 Though it is beyond the scope of this paper, there is a substantive debate to be had about whether the happenings of the early 1990’s Parliament reflected the way the legislature was supposed to operate in times of difference, or its antithesis. Regardless of the merits of the opposition’s delay tactics, or the Government’s corresponding rule changes, there was now a new reality during Orders of the Day. All MPPs had less time to speak to Government legislation. Currently, the rules of debate will allow the first speaker from each party up to one hour for their lead-off speech, which is normally done by the Minister or their Parliamentary Assistant for the Government and the respective critic for the opposition. After that, each MPP is limited to 20 minute speeches until the bill reaches six-and-a-half-hours of total debate time. From there, the Government can enact time allocation and, if not, each remaining MPP gets a time limit of 10 minutes to speak with the bill moving to vote when no more MPPs are available to speak. When combined with time allocation practices, these time limits have caused a substantial culture change to the Ontario Legislature. Now that opposition members know the Government can end

25 Ibid. 26 Macdonald, “Evolution of the Ontario Standing Orders,” 36. 27 Ibid. 28 Docherty, Legislatures, 94. debate easily after the six-and-a-half-hour time limit, there is no reason to ever allow debate to collapse before that time limit is reached. Every opposition party since the rule changes has continually put MPPs up to debate bills to the full-time limit – a practice that did not occur prior to the changes.29 This has not only increased the combative nature of the legislature, but reduced the quality of debate as MPPs with no experience in certain subjects are debating them at length. According to senior Legislative Assembly staff, this has led to an increase in the use of talking points and traded in MPP individuality for Leader or Premier’s Office controlled messaging.30 Though opposition parties since the rule changes have chosen to draw out their speaking time at every possible instance, do Governments respond by consistently using time allocations? The threat of time allocation is itself problematic, but the actual usage of it is a serious limit of an MPP’s ability to delay legislation and thus achieve policy change from the Government. According to , the former Deputy Chair of the Committee of the Whole – which is a position that no longer exists due to the rarity of Committee of the Whole – time allocation was never supposed to be used as a bully pulpit. “It was said by the government at that time that of course the government would not always be using the new time allocation rule. What we saw in the last sitting is that time allocation was used increasingly…The government will always use the tools at hand; that's the way the system works.”31 Drainville said this in 1994, but does the Government still use time allocation to dramatically limit debate and thus limit an MPP’s ability to affect policy change? In Docherty’s 2005 work, Legislatures, he examines the use of time allocation in each province. Ultimately, Docherty finds that Ontario used time allocation 76 times between 1997-2002. The Federal House of Commons only used time allocation 37 times in that period, while no provincial legislature used time allocation more than 5 times. In fact, six provincial legislatures did not use time allocation at all and the Northwest Territories does not even allow for the practice in its Standing Orders.32 Though there has been little in the way of updates to comparative studies of time allocation, Ontario continues to use this method at a blistering pace. The 39th Parliament saw 38 different time allocation motions used, the 40th Parliament only saw 3 used as it was a minority parliament that could not pass these motions without opposition consent, and the current majority held 41st Parliament has seen more than 30 time allocations used with almost exactly a year left of governing. Even if adjacent provinces have increased their usage of time allocation motions, Ontario still leads the pack, making the it harder for MPPs to get their points across and ultimately affect change. These limits on debate physically cap the number of MPPs that can speak to a bill and the amount of time each MPP is given to speak, but how do those limits translate into affecting an MPP’s ability to alter policy? Aside from forcing each bill to be debated to the maximum, Gilles Bisson argues that time allocation creates flawed legislation because the bill cannot be delayed and thus Government does not have to take notice of an individual MPP’s policy critiques.33 The best example of this comes from Bisson’s colleague MPP France Gélinas.

29 There are exceptions to individual bills, primarily if a party agrees emphatically with the legislation they will refuse to put up speakers to allow it to pass quickly. The same can be said about very controversial legislation. 30 Procedural Services Branch Members, February 20th, 2017. 31 David Pond, “Interview: Ontario’s Presiding Officers – David Warner, Gilles Morin, Dennis Drainville, ,” Canadian Parliamentary Review (16, No. 3, March 1994), 25. 32 Docherty, Legislatures, 155. 33 Mr. Bisson, Legislative Assembly of Ontario Debates. In the 1st session of the 41st Parliament, the Government brought forward boundary changes for electoral districts. MPP France Gélinas, who represents the Northern areas around Sudbury, brought forward a long-standing boundary complaint regarding the location of the Wahnapitae First Nation. The area in question is in the riding of Timiskaming-Cochrane even though the only between Wahnapitae and Timiskimaing runs through Gélinas’ riding of Nickle Belt. If any constituent in Wahnapitae First Nation wants to go to their current constituency office they must drive a total seven hours there and back, when the Nickle Belt office is just 20 kilometers away.34 Therefore, MPP Gélinas urged the Government to amend the boundary legislation to move this First Nation group into Nickle Belt. Though everyone agreed, MPP Gélinas was limited to a 20-minute speech, no different than the majority of members who had no criticisms of the bill whatsoever. Despite having a legitimate and reasonable concern, MPP Gélinas had no ability to emphasize her case to demand an answer from Government. The piece of legislation that otherwise was non-controversial, was later time allocated and passed without amendments to address Gélinas’ grievance. After the media caught on, the change was finally included by the Government in a piece of legislation nearly a year later which was, ironically, also time allocated. If the rules were the same as pre-1992, Gélinas could have stalled the Government legislation from moving forward and likely would have forced the Government to concede the change so they could pass their legislation. The Province would have had better legislation, less partisan rhetoric, and the people of Wahnapitae would have been accommodated. Instead, two pieces of legislation were needed and a year of unnecessary delay. This is evidence why the combination of both time allocation and time limits on debate may be the single largest reduction of an individual MPP’s ability to affect policy change.

Private Members’ Public Business In Ontario, Private Member’s Public Business (PMPB) occurs on Thursday afternoons. Each MPP who is not in Cabinet or the Speaker receives a ballot date. These slots are filled with either motions or Private Members’ Bills (PMB), with each being subject to a debate and a non-binding vote for motions or a second reading vote for bills. This practice continues until the next dissolution of parliament; normally meaning each MPP gets one debate slot every 12-18 months. These bills must not directly spend money or introduce new taxes. Lastly, if a bill passes second reading, it must then go through committee and third reading to become law. However, both tasks are scheduled by the Government, meaning the Government controls the passage of every PMB regardless of the party of origin.35 PMPB is the most logical place to evaluate an MPP’s ability to affect policy change since every PMB is a proposal to change policy in someway.36 This evaluation can be done in two main ways: by evaluating how many PMBs pass into law or if any PMBs are included in Government legislation that passed into law. Both scenarios will be evaluated individually with motions exempted as they are non- binding resolutions.

34 Mme. Gelinas, Legislative Assembly of Ontario Debates (1 December 2015). 35 Larry Johnston, “The Role of the Private Member,” Legislative Library of Ontario (November 2014), 3. In a minority parliament, committee can be scheduled by the opposition but third reading debate of a bill can only be scheduled by the Government. 36 Blidook, Constituency Influence in Parliament, 97. PMPB was given its own dedicated time on Thursday mornings in 1985 through a set of changes to the Standing Orders.37 The next change for this avenue came in 2008 when the number of slots per week was expanded from two to three and the timing for PMPB was moved to the afternoon to accommodate the change in timing of Question Period.38 One additional change in 2008 was to allow bills to be co-sponsored by up to one member per party. Ultimately, the important question is, did these changes enhance an MPP’s ability to affect policy change or diminish it and where do we stand today? To answer that question, we must look at the passage rates of PMBs. Between the forming of the 35th Parliament, which was formed in 1990, and the end of the calendar year 2016, the Ontario Legislature saw 2,175 PMBs introduced with 118 different PMBs receiving assent. 39 That works out to only 5.4% of PMBs passing, indicating to the casual observer that MPPs may not be able to affect policy through this avenue very often. However, the rate of passage over time is the key here. Between 1990 and the 2008 rule changes, only three parliamentary sessions saw nine or more PMBs pass. Since 2008, nine or more PMBs have made it through the legislature in three of six overall sessions. In fact, 52 of the 118 PMBs passed in since 1990 have occurred since 2008. One potential explanation for this increase in PMB passage is the introduction of co-sponsoring abilities. Immediately following the rule change in 2008, co-sponsoring became very popular. Of the next 15 PMBs to become law, 11 of them were co-sponsored.40 Though that trend has receded recently - with only 5 co-sponsored bills passing since 2013 – the overall conclusion that co-sponsored bills enjoy greater success rates still holds true. Of the 53 PMBs to receive royal assent since co-sponsoring was brought in, 16 of them have featured multiple sponsors. Thus, 30% of all PMBs passed since 2008 have had multiple authors. Although this may have opened a new avenue for MPPs to affect policy change, it literally means just one MPP is not as able to affect change as multiple MPPs. Essentially, MPPs have been granted a new tool by admitting that their abilities to secure policy changes individually have eroded. Contrary to the above point, the data shows that more single member PMBs have passed in total since the 2008 rule changes took place as well. However, there is not a considerable jump in the number passing until Premier took office in 2013. In the three sessions where she has been Premier, 37 PMBs have been passed – more than any other three session period since 1990.41 In fact, all three of her parliamentary sessions as Premier rank in the top four sessions for total bills passed, with only the 1993-94 session joining the current Premier’s tenure. Since no substantive changes have been made to the rules governing PMBs under Premier Wynne, it would be logical to conclude that the current Premier is more open to PMBs becoming legislation than Premiers past. Therefore, MPPs have more ability to affect policy change under the current Premier than ever before, but is it because of the MPP’s bills or the Premier’s approach to governance? By looking at the pieces of legislation that have passed, they can be categorized into either substantive pieces of legislation or non-substantive pieces, as seen in Appendix A. Any bill that proposed to create an awareness or heritage day, week, or month was considered non-substantive, as it does not change Government policy. Any bill that amended an existing act or created a new act for the purposes of something other than commemoration was considered a substantive bill. Before the rule changes, the

37 Macdonald, “Evolution of the Ontario Standing Orders,” 34. 38 Deborah Deller, Standing Committee on the Legislative Assembly (4 April 2012), M-46. 39 See Appendix B. 40 See Appendix A. 41 See Appendix B. It should also be noted that this progress comes under 3 different House Leaders (, , and ) implying that the willingness to pass legislation comes from the Premier. highest number of non-substantive PMBs passing was four in a single session. Since the rule changes, the Ontario Legislature has seen 6 or more non-substantive PMBs passed in four of five parliamentary sessions. In the last two sessions, 18 of 28 bills have been non-substantive. Since Premier Wynne took office, 38 total PMBs have passed but 24 of them are non-substantive. Who is to blame here, if anyone? Are MPPs learning that they cannot affect policy change and thus adapting to make the commemorative changes that they are able to impact? Are more opposition MPPs putting these bills forward because they know the Premier may pass them? Has the Premier instructed her own MPPs to put forward more commemorative days for political purposes? Or, as her once backbench MPP suggested in committee, does the Government have a tighter vetting process for PMBs than opposition parties, meaning commemorative bills are some of the only ones that make it through the vetting process?42 Regardless of the root cause, commemorative PMBs appear to be diluting the ability for MPPs to affect policy change. Former PC Leader expressed frustration in a recent PMB debate saying, “In this assembly, honest to goodness, in this sitting, we have fully 24 awareness day or month bills.”43 This point may unearth the underlying reason behind the weakening of PMBs. Ontario has little to no pre-screening requirements compared to other legislatures which require the Speaker or Clerks to strictly enforce spending requirements through pre-screening of PMBs.44 Ontario introduces more PMBs than any other provincial Parliament in Canada, likely because of lax pre-screening measures.45 If MPPs can introduce bills that technically cannot pass, it could partially explain why their success rates on substantive pieces of legislation have been so low. Though it is apparent substantive bills do not pass as often, do they impact Government legislation? Kelly Blidook does an excellent job attempting to quantify the impact of PMBs on Government legislation federally, but no such work has been done provincially, leaving this question wide open. Anecdotally, there are certainly instances such as MPP Bailey’s example mentioned earlier or a more recent piece of Government legislation combatting human trafficking, in which the Government has openly stated they have modeled some of the features after a PMB brought forward by MPP Laurie Scott. However, in other cases, it can be hard to tell if there is a direct link. For example, MPP brought forward legislation on rent control mere weeks before the Government did the same. It is almost guaranteed that the Government was preparing this legislation well before Tabuns’ PMB, but did it rush the process or have any impact? Another example comes with PC Leader Patrick Brown’s decision to force a vote in the legislature on road tolls in Ontario through a PMPB motion. The Government abstained from the vote and later rejected the request by the Mayor of Toronto for legislative changes to approve road tolls. Did MPP Brown’s motion impact the Government’s decision at all? If so, to what extent? Answering these questions would likely require interviews with sitting Cabinet members, making it beyond the scope of this paper. However, there is one area of PMPB that should be raised. Throughout every committee that has reviewed PMBs they have found repeated frustration with the inability to move PMBs forwards to

42 Standing Committee on the Legislative Assembly (4 April 2012), M-54. 43 Mr. Hudak, Legislative Assembly of Ontario Debates (9 June 2016). 44 Docherty, Legislatures, 112-113. 45 Legislative Assembly of Ontario. Standing Committee on the Legislative Assembly (1st sess., 40th Parliament, 18 April 2012), M-64. the committee stage without Government consent.46 Recently, PC MPP even used his second PMB slot of the session to bring forward a motion urging the legislature to move forward with the bill he brought forward during his first PMB slot. The process is so delayed that an MPP has had to use two of his PMB slots to get progress on the same item. The original bill still has not moved forward, and likely will not, but it has the potential of establishing a very dangerous legislative precedence. Other jurisdictions like Canada’s Federal Parliament and New South Wales can strike specific committees just for PMBs. This ability in Ontario would help move bills through the process, with the Government still having to agree before these bills are scheduled for third reading. As Docherty once wrote, “ …if PMB receives more time on Parliament’s agenda and if more items are voted on, then each MP’s potential influence as a legislator is likely to increase and policy advocacy may become a more fruitful pursuit.”47 Though he was referring to the Federal House, the same holds true in Ontario. You cannot blame an MPP for only putting forward non-substantive legislation if every time they try to put forward substantive pieces the bills go nowhere.

Conclusions Be it through Private Members’ Public Business, Orders of the Day, Order Paper Questions, Members’ Statements, or Question Period, the ability for individual MPPs to affect policy change has diminished over time. This reduction of power comes not as a direct attack on individual MPPs, but rather an attack on opposition powers and delay tactics, with MPPs becoming the innocent casualty. Though this paper has established that the policy role of the individual MPP is diminishing, that should not automatically be taken as a bad thing. Some scholars have even argued that the individual should not be empowered in the legislative process. Regardless of the merits of the role of an MPP, the ability to affect policy change should always be a possibility – no matter how remote. If no MPP believes in their ability to affect change, we may lose qualified candidates and weaken our democracy overall. Secondly, if we are to take efforts to increase the abilities of individual MPPs, this paper should serve one purpose – to caution those who undertake this effort. There are always unintended consequences of Standing Order changes. This is especially true in Ontario where there are more centralized Leader’s offices and the only set of Standing Orders in Canada that do not reference individuals but rather parties. Just because MPPs may appear to get more power, there is no guarantee that this power will not be usurped by the parties they represent. Ensuring the reforms benefit their intended targets is incredibly difficult. Graham White warned that “…reform is hampered by an inability to look beyond partisan advantage to the improvement of the legislature as a whole,”48 while the Clerk of the Legislature warned during recent reforms “Please try not to rush this. These things can be critically important down the road.”49 Both are ample warnings that should be heeded if consensus among parliamentarians is that their individual abilities should be increased. Even though the academic community and this paper have shown that parliamentarians may carry little ability to impact policy, Blidook sums it up best when he writes parliamentarians “may have little chance of steering the ship, but they can certainly attempt to manoeuver the life raft.”50 It is vital

46 Ibid., M-61-M-62. 47 Docherty, Legislatures, 113. 48 White, The Ontario Legislature, 75. 49 Standing Committee on the Legislative Assembly (4 April 2012), M-60. 50 Blidook, Constituency Influence in Parliament, 27. to realize that MPPs themselves likely still believe they have a large impact on public policy, and some of them will do just that. In addition, they can bring attention to issues, even if they cannot solve them. When Loat and MacMillan conducted their federal interviews, they made special note of a quote from former Liberal politician Russ Powers who said, “The truth is: you’re there to develop policy that is self-serving and beneficial to your party in order to keep you in power and get you re-elected.”51 When Loat and MacMillan heard that quote they used it to frame a debate about the amount of partisan influence that exists over the role of a parliamentarian. Instead, it seems they should have been surprised that the member suggested the primary role of a parliamentarian is to develop policy.

51 Loat and Macmillan, Tragedy in the Commons, 10. Appendix A – Substantive and Co-Sponsored PMBs 1990 – 2016

Legislature- PMBs Passed Co-Sponsored Non-Substantive Session 41-2* 11* 2 (18%)* 8 (73%)* 41-1 18 1 (6%) 10 (56%) 40-2 9 2 (22%) 6 (67%) 40-1 4 4 (100%) 2 (50%) 39-2 6 4 (67%) 6 (100%) 39-1 – 2008 5 3 (60%) 2 (40%) Rule Changes 38-2 4 N/A 0 (0%)

38-1 9 N/A 3 (33%) 37-4 0 N/A 0 (0%) 37-3 5 N/A 0 (0%)

37-2 9 N/A 3 (33%) 37-1 7 N/A 4 (57%) 36-3 0 N/A 0 (0%) 36-2 5 N/A 3 (60%) 36-1 5 N/A 2 (40%) 35-3 18 N/A 1 (6%) 35-2 1 N/A 0 (0%) 35-1 2 N/A 0 (0%)

TOTAL 118 16 of a possible 50 53 (30%)

* As of December 31, 2016

Appendix B - PMBS 1990 – 2016

Legislature/ Number Number Percentage Session Introduced Passed Passed 41/2 73* 11* 15.1 41/1 161 18 11.2 40/2 148 9 6.1 40/1 113 4 3.5 39/2 176 6 3.4 39/1 183 5 2.7 38/2 175 4 2.3 38/1 151 9 6 37/4 119 0 0 37/3 198 5 2.5 37/2 117 9 7.7 37/1 126 7 5.6 36/3 23 0 0 36/2 70 5 7.1 36/1 83 5 6 35/3 116 18 15.5 35/2 68 1 1.5 35/1 75 2 2.7 TOTAL 2,175 118 5.4

* As of December 31, 2016

Bibliography:

Atkinson, Michael. "Policy Interests of Provincial Backbenchers and the Effects of Political Ambition." Legislative Studies Quarterly, Vol 3 (1978): 629-46.

Blidook, Kelly. Constituency Influence in Parliament: Countering the Centre. Vancouver, University of British Columbia Press, 2012.

Blidook, Kelly. “The Changing Use of Standing Order 31 Statements.” Canadian Parliamentary Review 36, No. 4 (Winter 2013): 25-29.

Davidson, Mitchell. “The Evolution of Question Period in the Ontario Legislative Assembly: Uniqueness and Utilities.” Paper Presentation, Canadian Political Science Association Conference, 2014.

Decker, Todd. “Legislative Reports: Ontario.” Canadian Parliamentary Review 20, No. 3 (Autumn 1997): 34-36.

Docherty, David C. Legislatures. Vancouver, University of British Columbia Press, 2005.

Franks, C.E.S. The Parliament of Canada. Toronto, University of Toronto Press, 1987.

Johnston, Larry. “The Role of the Private Member,” Legislative Library of Ontario (November 2014): 1-9.

Loat, Alison and Michael MacMillan. Tragedy in the Commons: Former Members of Parliament Speak Out About Canada’s Failing Democracy. Random House Canada, 2014.

Macdonald, Adam. “Evolution of the Ontario Standing Orders Since 1985.” Canadian Parliamentary Review 25, No. 3 (Autumn 2005): 33-39.

Ontario. Legislative Assembly of Ontario Debates, 8 June 2016 (Hon. Mr. Leal, LIB).

Ontario. Legislative Assembly of Ontario Debates, 14 October 1986 (Hon. Mr. Nixon, LIB).

Ontario. Legislative Assembly of Ontario Debates, 17 June 1992 (Mr. Cousens, PC).

Ontario. Legislative Assembly of Ontario Debates, 5 March 2015 (Mr. Bisson, NDP).

Ontario. Legislative Assembly of Ontario Debates, 1 December 2015 (Mme. Gelinas, NDP).

Ontario. Legislative Assembly of Ontario Debates, 9 June 2016 (Mr. Hudak, PC).

Ontario. Parliament. Legislative Assembly of Ontario. Standing Committee on the Legislative Assembly. 1st sess., 40th Parliament, 4 April 2012.

Ontario. Parliament. Legislative Assembly of Ontario. Standing Committee on the Legislative Assembly. 1st sess., 40th Parliament, 18 April 2012.

Pond, David. “Interview: Ontario’s Presiding Officers – David Warner, Gilles Morin, Dennis Drainville, Noble Villeneuve,” Canadian Parliamentary Review 16 (No. 3, March 1994): 22-28.

Procedural Services Branch Members, interviewed by Mitchell Davidson at Legislative Assembly of Ontario, February 20th, 2017.

Reid, John. “Democracy in the 21st Century: Advice for Newly Elected Members of Parliament.” Canadian Parliamentary Review 29, No. 1 (Spring 2006): 2-3.

White, Graham. The Ontario Legislature: A Political Analysis. Toronto, University of Toronto Press, 1989.