Should I Stay or Should I Go?

Proposed new changes to the discretion of removal officers appear at first glance to eliminate the possibility of discretionary deferrals and Federal Court stays of decisions not to defer. But do they?
The present s. 48 of the Immigration and Refugee Protection Act, (similar to its predecessor under the Immigration Act) refers to removals being executed as soon as “reasonably practicable”. The amendment to section 48, not yet enacted, takes out this phrase and replaces it with “as soon as possible.”
Does this change limit the officer’s discretion to defer removals? I don’t think so. Here is why.
The Federal Court, in a number of cases, found that removal officers do have the jurisdiction to delay removal. In Poyanipur v. Canada the applicant had applied for landing on humanitarian grounds in September 1995 but in October he was called in for removal. The applicant asked that removal be deferred as his humanitarian application remained outstanding.
The removal officer held that he had no discretion not to remove and further that he was instructed to remove as quickly as possible. A date for removal was set and a stay was filed in the Federal Court.
Looking at the phrase “ reasonably practicable”, Simpson, J. found that removal officers do have the discretion to defer. She found that the term “reasonably practicable” covers a broad range of circumstances, including a consideration of whether it would be reasonable to await a pending decision on an H & C. She found that “reasonably practicable” is not the same as “as quickly as possible” and found that the officer had erred in applying the latter test.
Although a removal officer’s discretion not to remove is limited there are a number of factors that he can consider in exercising this discretion including the timely filing of an H & C; exigent personal circumstance, particularly those affecting the best interests of children; medical issues; and new evidence of risk not yet considered.
In using the phrase “as soon as possible”, has parliament removed a removal officer’s discretion to consider these factors? The Provincial appellate courts throughout Canada have interpreted the phrase “as soon as possible” in a variety of contexts and they all agree on its meaning. In Wooldridge v. Woodridge the Alberta Court of Appeal states:

The meaning of the phrase “as soon as possible” has been interpreted in a variety of situations, but the result has been remarkably consistent. Essentially, these words should be read broadly to mean as soon as reasonably possible having regard to all the relevant factors and circumstances….

Parliament has replaced “reasonably practicable” with “reasonably possible” which inherently includes an assessment of all the relevant factors and circumstances. In the end, then, the law has not been altered. In my view, the discretion to defer removal and the concurrent power to review that discretion, have remained unchanged.