Canada. Oh Canada. As Canadians, we have gained a reputation for welcoming refugees. In the movie Logan, we see how Laura aka X-23 and the mutant children flee to Canada from a dystopian United States where mutants are persecuted. But what would actually happen if these mutants were to all of a sudden show up at the Canadian border seeking asylum as American refugees?
Crossing the Border and Making a Refugee Claim
We’ll start with the assumption that the children’s contact in Canada intends for them to legally claim asylum. At the Canada Border Services Agency office where the children would report to and make their refugee claims, officials would do background checks on the children, take prints and biometric data. Since they’re minors, they could become wards of the state or the people who helped them cross the border might be able to apply for guardianship.
They would then have to fill out the requisite paperwork to make their refugee claims, according to Kathy Drouin-Carey, a Canadian lawyer who practises in the area of refugee claims in Canada. Drouin-Carey believes that these mutant children would make their applications on both grounds of protection available under Canada’s Immigration and Refugee Protection Act being a “Convention refugee” (in reference to the United Nations Convention Relating to the Status of Refugees) and a “Person in need of protection”. Below is an excerpt of those provisions in the Act [my emphasis added]:
“Arguably, the children would qualify under reasons of race or membership in a particular social group,” says Drouin-Carey. For reasons of race, “I would say that the mutants could claim they are being persecuted due to ‘race’ because they were born with the mutant genes in their DNA.” Although genes do not define “race”, mutants’ genetic differences from ordinary humans do make them distinct. As for being a member of a particular social group, mutants are an identifiable group being persecuted in the U.S., so Drouin-Carey believes this enumerated group could apply to these mutant children as well.
The “Person in need of protection” ground under Section 97 is a much more personal ground and Drouin-Carey believes that there would be merit for the mutant children claiming on this ground as well because, “Staying or returning to the United States would subject them to danger, risk to their lives and possibly to cruel and unusual punishment.” Further, we can infer from Logan that, “the mutants are not able to seek protection from the state (i.e. government) and the risk is not to everyone else in the U.S. And from what we know, they’re at risk everywhere in the U.S.”
Refugee Protection Division and Criminality
After submitting their paperwork, the children would have to get past the Refugee Protection Division, which is an administrative tribunal and the division of the Immigration and Refugee Board of Canada that hears and decides claims for refugee protection.
“One of the biggest hurdles they would have to pass is whether the children would be inadmissible based on criminality”, says Drouin-Carey. In Logan, we saw how Laura killed many times over in brutal fashion and how the children together killed at least one Transigen thug near the end of the movie. Let’s then assume that the U.S. government has labelled Laura and the other children as extremely dangerous because they have mutant abilities and have killed, even though they have not been convicted for their alleged crimes. Let’s also assume that this information has been shared with the Canadian government.
Under Section 36 of the Act, the Refugee Protection Division may have grounds to deem the children as inadmissible based on having committed a criminal or serious criminal act outside of Canada that would be indictable offences in Canada. “The tribunal wouldn’t even need a conviction, it looks like they’d just need some evidence of ‘committing an act’ of criminality,” says Drouin-Carey. Counsel for the children might be able to make submissions to justify or excuse the alleged killings based on, among other things, self defence and age (all of them appear under 16 years old).
Whoever is helping the mutants cross the border hopefully has legal counsel or has funding for legal counsel to assist the children complete their claim forms and represent them before the Refugee Protection Division, especially given the element of criminality that would likely pose a challenge for their claims. If they don’t, then the children might be able to apply for legal aid.
To add complexity to this, Laura may also have a colourable claim to Canadian citizenship which could possibly aid her refugee claim or perhaps bypass it altogether.
While Canada may have made itself known as welcoming to refugee claimants, we don’t just let anyone in who arrives at the border. These processes and bureaucracy are in place to protect the country and its citizens, while balancing it against our humanity to protect people fleeing persecution and danger. Even mutants.
Special thanks to Kathy Drouin-Carey from Edmonton, Alberta-based firm Insight Law LLP for her time spent with me being interviewed for this post.