Who was policing Ford's Hamilton campaign stop in May? New questions arise on airport, OPP role

Questions continue to swirl about who was making decisions and on what grounds when it came to removing protesters outside a Doug Ford campaign stop at Hamilton's airport in May, amid new details from the airport and provincial police.

Despite saying she was not protesting, Toronto lawyer Caryma Sa'd was arrested at the May 26 event, in the lead up to the June 2 provincial election. A separate group of demonstrators were also asked to leave, with police saying they were trespassing.

Until now, questions had been put to Hamilton police and the Ford team, with critics wondering if Hamilton officers were acting based on orders given by Ford security. 

But new questions raised at a recent airport sub-committee meeting reveal the Hamilton International Airport and Ontario Provincial Police (OPP) were both involved in decisions relating to how to respond to protests.

"I think it is an important issue," Ward 8 Coun. John-Paul Danko said during the June 28 committee meeting, pointing to the use of security by the Ontario Progressive Conservatives (PCs) in the past, including one case where a journalist was blocked from a PC event. 

"The airport is under lease from the City of Hamilton and I think there is a bigger question here so I do hope there are some answers forthcoming from either the OPP or Hamilton Police Service," Danko said. 

Questions put to the airport, OPP, Hamilton police and the PC party by CBC Hamilton reveal several of those involved point to another when it comes to who requested to remove protesters. 

The airport says it was the OPP who approached them and asked that the airport request officers to enforce the Trespass to Property Act (TPA) "to remove protesters from its property."

OPP says officers were just doing their job and enforcing the TPA, which states police must act upon whatever the airport defined as prohibited activity. In this case, OPP says, it was the airport that said protesting was prohibited. 

Meanwhile, Hamilton police, the service responsible for arresting lawyer Sa'd on behalf of the OPP, won't answer questions about the situation besides saying officers were enforcing the TPA.

Legal experts and Sa'd say more transparency and clarity is needed.

They still have questions about her arrest, if Sa'd's Charter rights were violated and what influence the PC party may have had.

How May 26 unfolded

The controversy started hours before the Ford rally began.

Sa'd said she had RSVP'd to attend the event. She's known for creating cartoons and videos that criticize politicians and people protesting public health measures.

Sa'd said she wasn't there as a protester but as a political commentator. She said someone from Ford's team asked her to leave and called the police when she refused.

"You're not invited to this event … we know you're not here for the right intentions," said a person speaking to Sa'd in a video she posted to Twitter. The person appears to be wearing an in-ear headset, but their affiliation is unclear.

Hamilton police previously said Sa'd didn't leave despite multiple chances, leading to an officer arresting her for trespassing — fail to leave premise when directed.

Sa'd said she was taken off the property before being released and given a $65 ticket.

Hamilton police spokesperson Jackie Penman didn't answer specific questions about the incident "out of respect for the court processes," only saying officers were acting under the TPA.

The PC party and Cargojet didn't answer questions from CBC.

Asked about the situation, city spokesperson Michelle Shantz said the city respects decisions and actions enforcement teams make, saying "enforcement teams at times need to make quick judgment calls in order to maintain safety at City-owned buildings."

Airport and OPP agreed to remove protesters

Also outside the event that day was a small group of demonstrators, including environmental group Hamilton 350 and Anthony Marco, president of the Hamilton and District Labour Council. They were protesting at the corner of East Cargo Road and East Cargo Drive, both of which are access roads leading toward the Cargojet facility. 

Cole Horncastle, the airport's executive managing director, said during the June airport sub-committee meeting East Cargo Road is under the airport's management and said it is private property.

Marco told CBC about an hour after protesting, he was shown a trespass order over the airport lands.

CBC viewed an image of what appears to be a form showing the airport requesting OPP and Hamilton police to enforce the TPA on its property that day.

None of those protesters were arrested, but Marco also has concerns about the PC party's potential influence, saying a party staffer was threatening to have police arrest him and the protesters.

The airport told CBC it complied with the OPP and requested officers enforce the TPA "with the understanding safety was at issue, and access to airport tenants was impeded."

"[OPP raised] the safety concern with the amount of traffic on the road and access to stakeholder and other tenants ... who were raising [operational] concerns for their employees," Horncastle said when asked about what the concerns were during the sub-committee meeting.

The airport also said in an email protesting is "strictly prohibited" on its property and can only occur at the property line, but said it also "believes in safeguarding the right to protest."

"The Airport has committed to a review of internal policies and practices to ensure that decisions impacting protests in the future are made with fulsome information and protect activity related to peaceful protests, to the extent possible," read the email.

OPP says it doesn't take orders from politicians

OPP spokesperson Bill Dickson told CBC Hamilton during elections OPP's Protective Services Section protects leaders of all three major political parties, but "does not take orders from government or political leaders."

"Police operations are completely independent of political influence," he said.

Dickson said OPP discuss security measures with the property owner or occupant — in this case, the airport — before any event with the leaders. One of those measures is the TPA.

He said under the TPA the airport decided what activity — in this case, protesting — is prohibited.

"Under the Trespass to Property Act, police have the authority to remove individuals engaged in prohibited activity on behalf of the property owner/occupant."

Dickson also said operational decisions are "always autonomous and based on safety and upholding the law."

Sa'd said she wasn't at the event to protest and doesn't understand why she was arrested.

She also takes issue with how much latitude a property owner or occupant has under TPA.

"If police are beholden to that, then clearly that has the potential to open the door for political influence in policing to the extent that it's not a bona fide, in good faith, list of prohibited activities," Sa'd said.

"What's preventing that political party from having criteria that are in fact political?"

She also said she's unsure of what safety threat she posed.

Were rights infringed? Lawyers analyze police actions

After Sa'd's arrest, the Criminal Lawyers' Association (CLA) and Women In Canadian Criminal Defence condemned the police and PC party in a public statement.

Cassandra DeMelo, the CLA vice president and founder of DeMelo Law, said she thinks Sa'd shouldn't have been arrested.

She said based on the TPA, Sa'd should've been allowed in because she had RSVP'd to attend the event and had a reasonable belief she was entitled to attend the event.

"She very clearly believes she has the right to be there and wants the police to come and clarify, which is the irony in all of this that the police then come and instead, arrest her," DeMelo said.

DeMelo said the party should've had a better vetting process to determine who got an invite and police should've explained to Sa'd why she was being uninvited.

"Even the fact they defined protesting as prohibited ought to concern citizens because essentially what they're saying is 'you're only invited here if you support us,'" she said.

"She's a young woman of colour and regardless of the intentions of security and police … it has a very bad appearance when you consider what police allowed to go on in for weeks on end in Ottawa with a mostly white number of citizens attending." 

From a Charter rights perspective, Albertos Polizogopoulos, a constitutional lawyer and founder of Acacia Group, said he doesn't think there were any issues when it comes to Sa'd's arrest.

"Whether she was protesting or not is, I believe, irrelevant … if she was asked to leave by the property owner and refused, it does not appear that the police here acted arbitrarily or inappropriately," he wrote in an email.

Errol Mendes, a University of Ottawa constitutional and international law professor, said had Sa'd been arrested on airport property — like the access road leading to Cargojet property — she could've argued her rights were infringed because the airport can be considered quasi-public.

He said it's quasi-public because there are members of the public on its board of directors.

"If you're protesting on private property, you have no rights except in a very rare situation," he said. "Because [the airport] is regarded as a quasi-public forum, as long as you're not interfering with the core functions and mandates of the entity, there is a right to protest."

Mendes said regardless of whether or not Sa'd has a legal leg to stand on, he thinks what happened was "awful" and blames the PC party.

"You may have a right to get people off property but if you're aiming to lead an entire province and govern on behalf of everyone, have some sense of the rule of reason," he said.

Hamilton protester files complaints with watchdog

Now six weeks after the incident, Marco, of the Hamilton and District Labour Council, said he has filed two complaints with the Office of the Independent Police Review Director (OIPRD).

The first complaint, claiming Hamilton police officers "acted as political agents in carrying out the will of the Ontario PC party," was dismissed.

A decision letter from OIPRD obtained by CBC says based on the information it got from Marco, officers were merely doing their job.

It says there's no evidence to suggest they "acted maliciously or that they were in bad faith when they dealt with the protesters." The letter also said the claim police were acting as political agents for the PC party, as Marco claimed, is "speculative."

Marco said he's still waiting to hear about his second complaint, regarding OPP's conduct. Similarly, he is questioning whether they were taking orders or had made their own assessment of the situation.

He said if the OIPRD dismisses the second complaint, he'll pursue a judicial review.

"If there are no answers forthcoming that really is an indictment of the system we've got," he said.