Section 48 of Canada’s Immigration and Refugee Protection Act provides that:
Enforceable removal order
48. (1) A removal order is enforceable if it has come into force and is not stayed.
(2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and the order must be enforced as soon as possible.
Baron v. Canada (Minister of Public Safety and Emergency Preparedness) is the leading Federal Court of Appeal decision on the discretion that Canada Border Services Agency (“CBSA”) officers have to defer removal. As per the Federal Court of Appeal:
It is trite law that an enforcement officer’s discretion to defer removal is limited.
The Federal Court of Appeal went on to note that deferral of removal “should be reserved for those applications or processes where the failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment in circumstances where deferral might result in the order becoming inoperative.” It elaborated on several other principles guiding the deferral of removal process, including that:
- There are a range of factors that can validly influence the timing of removal on even the narrowest reading of section 48, such as those factors related to making effective travel arrangements and other factors affected by those arrangements, such as children’s school years and pending births or deaths.
- The CBSA is bound by law to execute a valid removal order and, consequently, any deferral policy should reflect this imperative of the Immigration and Refugee Protection Act. In considering the duty to comply with section 48, the availability of an alternate remedy, such as a right to return, should be given great consideration because it is a remedy other than failing to comply with a positive statutory obligation. In instances where applicants are successful in their H&C applications, they can be made whole by readmission.
- In order to respect the policy of the Immigration and Refugee Protection Act which imposes a positive obligation on the Minister, while allowing for some discretion with respect to the timing of a removal, deferral should be reserved for those applications where failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment. With respect to H&C applications, absent special considerations, such applications will not justify deferral unless based upon a threat to personal safety.
- Cases where the only harm suffered by the applicant will be family hardship can be remedied by readmitting the person to the country following the successful conclusion of the pending application.
- An enforcement officer has no obligation to substantially review the children’s best interest before executing a removal order.
In Canada (Public Safety and Emergency Preparedness) v Shpati, the Federal Court of Appeal further stated that deferrals are intended to be temporary and that enforcement officers are not intended to make, or to re-make, pre-removal risk assessment or H&C decisions.
Finally, in Lewis v. Canada (Public Safety and Emergency Preparedness) the Federal Court of Appeal held that the Supreme Court of Canada’s decision in Kanthasamy did not broaden the discretion of removals officers to consider the best interests of children, and that the holding in Kanthasamy applies only to H&C decisions made under section 25 of the IRPA. Interestingly, in Lewis the Federal Court of Appeal did stress that while a full best interests of the child analysis is not appropriate, in cases involving the possible removal from Canada of first-nations children where they have non aboriginal parents, then the short term interests will be enhanced if he or she maintain some connection with his or her culture, heritage and, ideally, territory, to help foster a sense of belonging and pride, and that enforcement officers must consider their unique interests.
There is some jurisprudence, however, to suggest that the situation may be different for a timely filed H&C application which has been in the system for a long period of time. In Nucum v. Canada (Public Safety and Emergency Preparedness), 2010 FC 1187, for example, the Federal Court ordered that removal should be deferred.
Hence, as the Federal Court summarised in Danyi v. Canada (Public Safety and Emergency Preparedness), the jurisprudence has established that enforcement officers are required to consider the short-term best interests of a child in a fair and sensitive manner and that while the best interests of the children are certainly a factor that must be considered in the context of a removal order, they are not an over-riding consideration.