Bodies lie in a ditch in rural Mexico, as police look on. Photo by Tomas Bravo/Reuters

The first of Juan Escobedo’s many trials began in 2007 when his common-law wife, Lisbeth, then just 31, was diagnosed with cancer. The couple had four children and little money. At the time, Escobedo (not his real name) drove a bus he rented by the day around the city of Oaxaca and Lisbeth worked as a cleaner at the Mexican Social Security Institute. As a state employee, she qualified for free radiation and chemotherapy treatment at a public hospital, but doctors there held out little hope. It quickly became clear Lisbeth did not have long to live.

Escobedo’s second trial began in July 2008, when a gang of masked, gun-toting men burst into his house in the middle of the night. They blindfolded and tied him up along with Lisbeth and bundled them both into a van. They drove them to the Huayapam reservoir, where Escobedo was held underwater until he almost drowned, then beaten while Lisbeth was forced to look on. Their assailants identified themselves as members of “Los Zetas,” and said they wanted the couple to work for them. “They said, ‘We want a place from which to make sales and you are going to work for us, you understand?’” Escobedo recalls. “My wife was sick, and even so they made her sell drugs from our house.”

In a region known for corruption, electoral fraud and strong-arm politics, the Escobedos were just the kind of people the Zetas knew they could control and extort—average citizens without resources or connections. “They forced me to sell drugs, but others, they were forced to keep an eye on us,” he explains. “So anyone who said anything or made an accusation, for sure they would kill them.” The Zetas made copies of the couple’s identification cards, but that wasn’t the only factor that trapped them. What really stopped the couple from trying to escape, says Escobedo, was the fact that outside Oaxaca, Lisbeth’s cancer treatments would no longer be paid for by the state, and there was no way Juan could afford to pay for them himself.

He describes this period as “very painful. Like something you might see in a movie, but I was living it. I couldn’t do anything, and this put me into a kind of shock. I wanted to die.” By then, his wife was in constant pain and unable to sleep, “crying and moaning all the time,” he recalls. Every day for four months, dealers and addicts would climb onto his bus and purchase small bags of cocaine and crack, which he kept in his change box beside the steering wheel. Passengers and police alike took no notice. At one point, the couple was once again blindfolded and taken to a house where they joined a circle of people similarly bound. Two men brought in a third and beheaded him with a machete in front of the group’s horrified eyes—his punishment, they were told, for trying to escape. This was where Escobedo saw the one person he could identify, a uniformed police commander named Castillo.

In September 2008, Lisbeth died and Escobedo sent his children to stay with relatives. Mourning and hopeless, he also stopped working. Two weeks later, Castillo came to see him. “He said, ‘You’ll keep on working for us because you work for us.’ I really didn’t want to, so he said, ‘Here it’s not whether you want to or not,’ and he pulled out a knife. I didn’t know if he wanted to kill me or what his intentions were, but he stabbed me twice in the leg.”

In desperation, Escobedo’s father called Juan’s older sister, who lives in Canada, to see if she could help. She paid for his passport and a plane ticket, and in April 2009, with $5 to his name, Escobedo landed in Canada and immediately applied for refugee status. With his application to the Canadian Immigration and Refugee Board, Escobedo became one of the unprecedented 9,309 Mexican migrants seeking Canadian refugee status last year.

Though Escobedo’s status as a refugee applicant allowed him to go on welfare, he found work in Toronto instead. “I am not here to take anything from this country,” he says. “I am here for the second chance I wouldn’t have otherwise. And because I am more use to my family alive than dead.”

As drug-related violence sweeps across Mexico and the death toll rises, Canada has responded by shutting out more and more Mexican refugees fleeing the mayhem. In 2006, when 4,955 Mexicans applied, the Immigration and Refugee Board accepted 28 percent of those applications. That acceptance rate steadily dwindled to just eight percent, and in July 2009, the immigration ministry placed a visa requirement on all Mexicans travelling to Canada, essentially halting the flow entirely.

Lawyers and others who work with Mexican refugee claimants readily agree that there are opportunists using the violence as a pretext to enter Canada for short-term, higher-paid work than they can get at home. The dilemma they face is not gang-style execution, but a profound lack of economic opportunities.

“You have people in Mexico selling stories,” says Francisco Rico-Martinez, who heads the Faithful Companions of Jesus Refugee Centre and has been helping refugees for more than 20 years. “You come and the only detail is to say that you will be killed in Mexico if you go back. So we have those cases as well—people who are desperate for the lack of future and the poverty in Mexico, and they use any way to get out.”

Rico-Martinez estimates that roughly 60 percent of Mexicans claiming asylum here fit that profile, while 40 percent are at genuine risk of violence or murder. Yet Citizenship, Immigration and Multiculturalism Minister Jason Kenney routinely refers to all Mexican asylum claims as “bogus,” fostering a climate of skepticism even toward legitimate claimants who can document the persecution and death threats they have experienced. In these cases, says lawyer Mordechai Wasserman, the IRB “skips any consideration of credibility whatsoever. They jump to state protection. They say that Mexico is a democracy, that there’s a presumption of state protection.”

For the IRB, Mexico is a sunny travel destination, a functioning democracy where citizens have ample recourse within its domestic laws to deal with serious crime. When Wasserman points to the murders of police, soldiers, and members of the judiciary as evidence of the lack of state protection, the IRB says that evidence simply indicates that the police were killed in the line of duty and the government is making an effort to root out corruption. The absurdity of that rosy view drives Wasserman crazy. “I just want to tear my hair out,” he says.

Wasserman isn’t alone in his frustration. Aviva Basman, a lawyer at Toronto’s Refugee Law Office, describes her Mexican clients as “some of my most traumatized and most compelling cases.” Many are battered women, whose husbands have backchannel connections to Mexico’s public security apparatus that allow them to repeatedly track down and attack them. “I feel like I’m banging my head against a wall,” she says, “because you go in and make what you think are very strong legal arguments based on facts as they now are in Mexico, that is so dire, and then you get a kind of boilerplate answer back.”

Among the most prominent cases of those refused is that of Wasserman’s client Gustavo Gutierrez. A detective commander with the Ciudad Juárez police force investigating the murders of more than 200 young women, Gutierrez fled to Canada after 36 of his colleagues were killed and he himself began receiving death threats from traffickers.

Another is Toluca lawyer Alfonso Vega, who was represented by Andrew Brouwer of the Refugee Lawyers Association of Ontario. Thanks to two legal cases Vega was pursuing against their members, he ran afoul of the shadowy yet powerful Atlacomulco Group. Wasserman had a client who was actually told by an employee of the Public Prosecutor’s Office that he would be killed if he did not leave the country. His claim was also denied by the IRB.

However, one of the most gruesome consequences of an IRB decision affected a Mexican woman identified only as Nuemi.

She came to Canada with two daughters in 2004, after she and her family received death threats from the Familia Michoacana cartel. The family’s claim was rejected, but the women stayed in Canada fighting deportation orders until, in August 2008, the elder daughter returned home to visit her dying grandmother.

Detected by La Familia and raped, Nuemi’s daughter flew back to Canada—which promptly deported her back to Mexico in December. Nuemi and her younger daughter were deported the following February, and all three women went into hiding at the home of an elderly friend. Only weeks later, then seven months’ pregnant as a result of the rape, Nuemi’s elder daughter was kidnapped. Police found her body in June; not only had she been beaten and shot in the back of the head, but the baby she had been carrying had been removed by Caesarean section. The elderly man sheltering them was also killed. His family, not surprisingly, told them to leave.

After receiving various desperate email messages from Nuemi, Rico-Martinez and Basman succeeded in bringing her and her surviving daughter back to Canada on temporary residence permits. Adding insult to injury, the condition of Nuemi’s return was that she reimburse Citizenship and Immigration Canada for their original deportation costs— including those of her murdered daughter.

While Nuemi’s assertion that she and her family lived in fear of their lives—and that Mexican authorities were incapable of protecting them—was tragically and graphically proven by her daughter’s grisly death, the IRB continues to rely on the “Internal Flight Alternative.” It suggests that applicants move elsewhere within their own country, such as Mexico City, where, in the words of one ruling, “I am convinced that state protection would be reasonably forthcoming.”

For lawyers defending what they feel are clearly meritorious refugee claims, their clients risk becoming victims of the Mexican government’s stated intention—but demonstrated inability—to protect its own citizens.

“There’s this belief,” says Basman, “that it’s okay as long as the government is trying to protect—even if it can’t.”

It is early summer and Mexico City bathes in the sweltering heat of a dry season stubbornly refusing to give way to the rains. Even as the number of deaths from the government’s struggle against organized crime reaches past 23,000, even as one of the nation’s most powerful men (former presidential candidate Diego Fernández de Cevallos) is himself kidnapped, life goes on in the vast metropolis and in towns and cities across the country. In Oaxaca, an international aid and human rights caravan is attacked and two activists killed, but no police investigation will take place and everyone accepts this. It is as if an alternate reality, a webbing of uncontrollable criminality, lurks below the surface of daily life. It’s a reality to which Mexicans, appalled as they may be, are becoming accustomed.

“It’s not like you’re fearful just walking down the street,” says John Mill Ackerman, professor at the Institute of Legal Research at the National Autonomous University of Mexico, “but if you’re targeted by a drug cartel, there’s really nothing you can do. And this,” he adds, “is an inheritance of the authoritarian system of government. This has been the big problem of the democratic transition of the last 10 years. We are still working with the same state apparatus, the same institutions. The changing colours of the party has led to different groups or mafias coming in or out of government— but not to a real conquest of formal institutions over informal institutions.”

Mexicans who, like Juan Escobedo, have for one reason or another fallen afoul of what Ackerman calls “powerful informal actors” should be seeking protection from the federal attorney general, or PGR. Its Ministerio Publico, or Public Prosecutors Office, has the job of not only investigating crimes, but deciding which cases will be prosecuted. “The Ministerio Publico is in total control of every part of criminal proceedings,” says Ackerman.

While the 2000 ousting of the long-ruling Institutional Revolutionary Party from government may have cracked open the political system, the judiciary remains mired in a culture of favouritism, secrecy, and corruption.

Judges rarely question or even see defendants during trial. There are no juries, no oral arguments, and no public access to evidence until the trial is over. Evidence gathered under torture is admissible, and most suspects are found guilty without scientific proof like fingerprints or DNA. In this system, prosecutors have unusually broad powers, deciding if a suspect is guilty before their day in court and using their own police force to gather evidence to support those decisions.

For José Rosario of the non-governmental Miguel Agustin Pro Juárez Human Rights Centre, the probability of such a system offering protection is “almost zero. There are many inequalities in Mexican society,” he says, “and those same inequalities reproduce themselves in the justice system.” What’s more, Mexican law severely limits the effectiveness, and so the likelihood, of people from one state accusing anyone of so-called “common” crimes like extortion, threats, kidnapping, or even murder in another. To seek justice, victims must stay within the jurisdiction where the crime has occurred, putting themselves in even greater danger. And, says Ackerman, “that’s not going to happen because the person knows the Ministerio Publico itself is, if not totally corrupt, that at least a criminal gang will have eyes and ears there. They’re going to see who is actually charging them. So there’s a very strong disincentive to even accuse these people.” The entire apparatus allows organized crime to flourish. “Most Mexicans,” says Edgardo Buscaglia, a law professor at the Autonomous Technological Institute of Mexico and an expert on organized crime, “consider the judicial system corrupt at all levels. By being conceived as corrupt by society, people do not report crimes, do not collaborate with the authorities and therefore any effort of the state is hampered.”

Originally trained by the Mexican army in the 1990s as an elite crime-fighting squad, a Mexican version of the Green Berets, the Zetas were soon co-opted by Osiel Cárdenas, leader of the Gulf Cartel. When Cárdenas was captured, “they slowly became more and more independent in many of their operations,” says Buscaglia, “at first with kidnappings, later extortions. And at some point they acquired so much economic power that they were able to divorce themselves from the Gulf Cartel.”

By now, he says, they are much more than a drug-trafficking gang. “They are a transnational organized crime group involved in 17 types of crimes, and present in 23 countries around the world.” Branching out into weapons and human trafficking, along with contract killings, protection rackets, and the kind of small yet profitable business of forcing non-members to retail drugs, “they have made fortunes out of this huge diversification,” he says.

Their financial clout and violent methods have allowed the Zetas to infiltrate police and judicial systems in several states, including Chiapas and Oaxaca. Infiltrating the federal government has been more of a challenge for them, says Buscaglia, but that’s only because their main rival, the Sinaloa Cartel, “has had a long-term monopoly on the capture of federal authorities at the highest level.”

There are 982 “pockets” in Mexico, where “the authorities and organized crime are one force,” Buscaglia adds, “and that’s the essence of a failed state. Mexico is facing limited symptoms of a failed state—and it’s expanding.”

Although President Felipe Calderón has continually proclaimed his desire to vanquish organized crime, dispatching the army throughout the country to do so, he seems unwilling to overhaul its dysfunctional justice system. “That system,” says Buscaglia, “is quite cosy for the political and business elite.”

Mexico’s congress did pass new acts designed to reform the justice system in 2008. With reform, says Buscaglia, “the capacity of organized crime to capture the judiciary would be limited.” But the president has done nothing to actually implement those changes. For Buscaglia, judicial reform is “a joke—two years have gone by and nothing substantive has been done.”

“The big opportunity of democratic transition,” says Ackerman, “the possibility of reforming our institutions, of bringing democracy into the state itself? Calderón just hasn’t done it.”

The third trial of Juan Escobedo is still under way. The ruling that will, in one way or another, change his life is yet to come. An April 2010 hearing was interrupted, as the IRB grappled with the fact that he took part in criminal activity, even if it was against his will. Another hearing in June was postponed. He remains convinced that if he does return to Mexico, the Zetas will somehow find him and subject him to the same gruesome death they have historically inflicted on so many others. “You don’t ask how they can find you,” he explains. “They have all your documents and that’s why they go and look for you.”

For her part, Basman is convinced that the IRB will carry on making negative rulings against Mexican claimants. “Because of the sheer number of claimants, there’s a fear,” she said, “that if you give positive decisions, you’re just encouraging more to come. If you recognize Mexico as a refugee-producing country, then more are going to come and they’re just going to be overwhelmed at the board.”

Yet in Mexico, said Buscaglia, “this nightmare will never cease until the violence and the suffering of average Mexicans reaches the political and business elite—when their families, their persons, and their net worth is actually hampered by organized crime, and the monster they created starts to eat them.”

Abdelkader Belaouni hasn't left the grounds of St. Gabriel's Church in Montreal in more than three years. Illustration by Todd Julie.

In 1990, Felicia Abimbola Akinwalere (“Ola” to her friends) arrived in Toronto from Nigeria on a temporary visa to visit family. During that vacation, her husband took part in a failed military coup, went missing, and was declared dead. Scared to return home, Akinwalere remained in Toronto and, in accordance with Nigerian tradition, married her husband’s brother—a Canadian citizen living in Mississauga. Together they had a daughter, Alice. Upon settling in Mississauga, Akinwalere joined a local church, Trinity Anglican, where she taught Sunday school. She also worked as a babysitter in the neighbourhood and got her certificate to be a personal support worker. She had a family, made new friends, and put down roots in the community. But in 2006, after two unsuccessful appeals to Citizenship and Immigration Canada (CIC) to stay in the country on humanitarian and compassionate grounds, Akinwalere was issued a deportation order. Reverend Steven Mackison and more than 20 members of the congregation at Trinity Anglican were outraged at the verdict and offered her their unconditional support. Having exhausted every other option to prevent her deportation, the congregants invoked the only power they had left: they offered her sanctuary on the grounds of their church. For two years, Akinwalere stayed at Trinity Anglican and a group of about 25 congregants worked, on a rotating schedule, to do laundry and grocery shopping for her. They donated enough money for a computer and cable television. Her daughter, Alice, would also visit, often spending the night. For birthdays and other holidays Akinwalere’s support team would organize dinner parties in the church garden next to the cemetery.

Then, last September, Akinwalere’s life at Trinity Anglican was suddenly disrupted: an anonymous Mississauga resident called the Peel regional police complaining that an illegal immigrant was living in a nearby church basement. Soon after, without consulting CIC, a lone police officer drove to Trinity Anglican to break the church’s sanctuary. Margaret Yeo, a 79-yearold retired nurse and congregation member, found Akinwalere in the church garden about to be handcuffed and demanded an explanation from the police officer. She quickly phoned Mackison to inform him of the arrest, and when Mackison arrived at the police station, he explained to the officers there that CIC officials had known of Akinwalere’s whereabouts since she was first admitted to the church in 2006. He also told them there was going to be a rally the following Sunday against Akinwalere’s deportation order (which had been organized weeks before her arrest) that would be attended by the media and more than 200 local supporters, including local MP Paul Szabo and the regional Anglican bishop. Within 24 hours CIC granted Akinwalere a temporary stay on her deportation order. The planned rally turned into a celebration instead.

Churches across Canada, just like Trinity Anglican, have become part of the modern sanctuary movement—acting as a safety net for vulnerable refugees who slip through the cracks of Canada’s immigration system. The practice—an ancient one, but unofficial in a legal sense—recognizes the church as a safe haven for refugees who parishioners feel have been unfairly denied immigrant status. Sanctuary offers no legal protection, but, while police or federal officials can go into a church to remove a person under a deportation order, they rarely do; Akinwalere was only the third person to experience this in Canadian history.

The roots of sanctuary are centuries old: the concept dates back to ancient Greece and Rome. In the fifth century AD, Roman law guaranteed that churches could provide refuge, even for criminals. But in the 17th century, as the modern nation-states strengthened and the church’s influence over law waned, the practice declined. Sanctuary, in a modern sense, has existed in Canada since 1983, when a Guatamalan was given refuge in a Montreal church and eventually granted a stay of deportation.

Since then, more than 250 illegal immigrants have lived in Canadian sanctuaries. Today, there are two recent success stories (Akinwalere is one of them, the other is Shree Kumar Rai in Ottawa) and one active case: Abdelkader Belaouni in Montreal. However, sanctuary providers argue that this low number is not indicative of the number of refugees in Canada who have been unjustly denied immigrant status. They say that sanctuary is merely a symptom of deeper problems in Canada’s immigration process. Michael Cassidy, former leader of the NDP and member of the sanctuary committee of the First Unitarian Congregation in Ottawa (where Shree Kumar Rai lived for more than two years) says, “We are aware that for every person who enters sanctuary there must be hundreds who may have had a good case, but, for some reason, the merits of their case were not judged appropriately and they were forced to leave or to go into hiding.”

One refugee who definitely isn’t hiding is Abdelkader Belaouni. He goes by “Kader” to his friends, and that’s a long list. While many refugees and non-status migrants stay quiet and try to fly under the radar, Belaouni is outspoken, larger than life. He lives in a large old house that sits on the same grounds as St. Gabriel’s Church in the Point Saint-Charles neighbourhood of Montreal. The home is on church property and therefore functions as a sanctuary. In the second-floor sitting room, 42-year-old Belaouni takes a half-dozen strides, reaches with an outstretched arm, swivels his hips, and flops onto a plush pink couch. With that, he cracks a wide, full-lipped, chubby-cheeked smile. He lost his vision when he was 25 and sports tinted brown glasses that reflect the bright sun flooding in through the large windows behind us.

In 1996, Belaouni arrived in New York City after fleeing the civil war in Algeria. But after the post-9/11 backlash against Arabs and Muslims and the notorious “special registration”—a process wherein the U.S. government ordered everyone of certain nationalities to be fingerprinted, photographed, interrogated, and, for about 13 percent, deported—Belaouni fled to Montreal with the help of a Canadian friend. After immersing himself in the Point Saint-Charles community, making numerous close friends and perfecting his fluent French, Kader received a deportation order on January 5 2006. He entered sanctuary at St. Gabriel’s shortly after that.

Belaouni has lived in this quasi-incarceration for more than three years and he’s kept busy. Without leaving the house, he produced an album, No Human Is an Island, with Muslim rapper TuThree. He gives French and Arabic lessons to students in Montreal and he broadcasts a monthly radio show (from the same pink couch he’s sitting on) for CKUT, the non-profit McGill University community radio station. The current-affairs show, Radio Sanctuary, features French and English speakers. The guests range from politicians to local residents of interest, and the topics vary from local issues to global warming and the war in Iraq (but never to Belaouni’s own situation). He’s currently working on his second album and an autobiography. His buoyant personality seldom betrays it, but he feels the length of his stay and the uncertainty of his future weighing down on him. “I’m tired,” he says. “Everyone else gets out in a few months, a few years—I’ve been here for three years and four months now.”

Belaouni, Rai, and Akinwalere have very different stories, but the common thread that links all three is the dreadful treatment they have received from Citizenship and Immigration Canada. Poor translation, poor legal representation, misinformation, arbitrary decision-making, and a general lack of empathy characterize nearly every contact they have had with the system.

Today, Akinwalere is waiting for the outcome of her third appeal on humanitarian and compassionate grounds. Her current lawyer, Chantal Desloges, an immigration and refugee specialist and partner at Green & Spiegel, is confident that she has a strong case. Deporting Akinwalere would mean separating her from her Canadian husband and daughter. Bringing her daughter with her to Nigeria would not only mean uprooting Alice from the only home she has ever known, but also putting her at risk of the illegal but widely practiced female genital mutilation. “There were a lot of really important factors that were missing from the previous submission,” says Desloges. “It’s my opinion that if all of those factors had been in front of the immigration officer at the time, they probably would have come to a different conclusion.”

Akinwalere’s experience illustrates some of the problems that plague the immigration system in Canada. Just before she moved into the church in 2006, Akinwalere and 20 of her friends and supporters attended a judicial review in Toronto to argue that her deportation should be stayed while her third humanitarian appeal was heard by CIC officials. Akinwalere’s lawyer and a crown attorney arguing in favour of deportation met before a judge by teleconference in a cramped boardroom; communication was difficult, and the judge frequently needed Akinwalere’s Nigerian-born lawyer to repeat himself. The congregants who attended describe the proceeding as rushed and unfair, and Akinwalere’s friends and advocates found it an unsettling and disappointing scene to witness. “It served nobody,” says Robert Gadspy, a retired civil servant and president of Akinwalere’s support team. “This was my country—Canada—and I was embarrassed.”

What the sanctuary-providing churches really want is a fair immigration process, one that fixates less on obscure technicalities and more on justice. This, they believe, can be achieved if the government would implement a merit-based appeal process. And they’re not alone: Peter Showler, the former chair of the Immigration and Refugee Board and director of the Refugee Forum at the University of Ottawa, says, “there are mistakes being made by members that are not being caught by inadequate review procedures now in place that would be caught by a refugee appeal division.” Such a thing should exist, in fact, because a formal appeals process was part of the Canadian Immigration and Refugee Protection Act passed by Parliament in 2002—but it has never been implemented. At the same time, the number of IRB members judging a claimant was reduced from two to one. With a second IRB member considering each claimant, Showler says, “you’ve got a second set of eyes, a second set of ears, a second way of asking a question, of understanding a culture. It really makes a huge difference.” But he says that a single-member IRB would suffice if there was a merit-based appeal process.

Created in 1989, Canada’s refugee board process provides oral hearings for refugee claimants. But critics argue that the system is rife with problems: faulty translation, poor legal representation, a misreading of actual country conditions or, most frequently, refugees so traumatized that they give confusing answers and are thought to lack “credibility.” Currently, there is no mechanism to appeal an IRB decision. The federal government points to other avenues, such as the federal court’s judicial review, as ways that refugees can have recourse. But only 14 percent of cases are even granted leave for review, and only a fraction of those end up being reversed. And transferring the matter to federal courts introduces other limitations: in a judicial review, there is no opportunity to review a refugee’s credibility or introduce new evidence.

Two other avenues remain, a “pre-removal risk assessment” (where a CIC officer assesses the risk on a refugee claimant’s life upon return to their country of origin) or a humanitarian and compassionate-grounds application. Critics, however, deem both processes pointless if a refugee’s credibility has been denounced by the original IRB official.

The system, as it works now, leaves too much room for error and offers few opportunities to correct those mistakes. “What we are seeing,” says Showler, “is a significant number of cases where there are good grounds for thinking the person is a refugee and no real opportunities to get [an unfair verdict] fixed afterwards.” An appeals process would also allow for targeted review of IRB decision-making. If, for instance, an IRB member had grant rates, or rejection rates, outside the expected range, their decisions could be re-examined.

And the evidence shows that such arbitrariness is rampant: a recent study by Sean Rehaag, professor at the Osgoode Hall Law School, that looks at figures from 2006 shows that some members grant refugee status in 95 percent of cases, while others grant refugee status in as little as 5 percent of cases. The IRB argues that these fluctuations occur because some members only examine refugee claims from specific countries, or only expedited cases. But Rehaag argues that these specializations do not account for the exceptionally high variance in acceptance rates. “People who hear similar subsets of claims still have very, very different grant rates,” he says.

Shree Kumar Rai has experienced many of these failings first-hand. He had been living in the sanctuary of Ottawa-based First Unitarian Church of Canada for more than two years. Rai fled Nepal in 1996 after his political party, the United People’s Front, joined forces with the Maoists and dropped its policy of non-violence. At his first IRB hearing, his application was rejected because of his membership in the UPF (the IRB member thought, incorrectly, that the UPF had been violent when Rai was involved). The federal court’s judicial review eventually overturned the faulty rejection and advised that a new hearing be set up as soon as possible. Rai waited four years for his second IRB hearing. This time, a new member rejected his entire claim based on credibility (a catchall term used by board members who find a refugee’s testimony “unreliable”). The member cited the fact that Rai was not on Amnesty International’s list of Nepalese refugees as a reason for denying him status. Amnesty, however, makes no claims to listing every single refugee from a country. Another reason listed for denying Rai’s claim was the fact that he had paid for identity cards to get out of Nepal. The member rejected the notion that there could be corruption in the Nepalese border services and that therefore payment for identification documents would be necessary. Of this justification, Showler says, “‘Ludicrous’ is a reasonable word to describe it.”

Plenty of religious groups point to cases like Rai’s as evidence that the immigration and refugee hearing process is profoundly broken, that refugees often do not get a fair hearing, and that there is no way to course-correct or appeal. The system, they say, simply fails to meet Canadian standards of justice. In granting sanctuary, they are condemning the system and, essentially, taking the law into their own hands. They don’t take the decision lightly.

Michael Creal, former York University humanities professor and head of the Southern Ontario Sanctuary Coalition, explains that refugees are only taken into sanctuary as a last resort and only if certain criteria are met. The evidence must be compelling that either an error has been made in the IRB judgment, all legal options appear to have been exhausted, legal representation has been faulty, or there is new evidence and documentation to present to the IRB. Until a merit-based appeal is implemented—as legislation requires—some churches will continue to harbour refugees on moral grounds, if not legal ones.

A spokesperson for the Canada Border Service Agency (CBSA), the enforcement arm of CIC, wouldn’t comment on specific cases, but she said “the federal government does not condone individuals hiding in churches to avoid removal from Canada.” James Bissett, former head of the Immigration Foreign Service, is more vocal in his disapproval of the practice. “The church should leave the decision as to who should stay in Canada, and who should leave, to the immigration authorities and government,” says Bissett. “And they should read their Bibles.”

It is difficult to say how many illegal immigrants there are in Canada. In May 2008, Auditor General Sheila Fraser announced that there were 41,000 people that Canada wanted to deport but could not find. Sanctuary is seen by some as a possible back door into Canada. But churches assert that they aren’t providing a port of easy entry, but rather a necessary service for refugees who they just can’t in good conscience turn away. The churches recognize, however, the liminal space they occupy between legal and illegal. “It is disruptive,” says Creal. “It is a challenge to the system of power, and it can be met with considerable anger, or just cold resistance, on the part of the government.”

Over the past two decades, the government has had a precarious relationship with sanctuary providers. In 2004 the minister of immigration, Judy Sgro, suggested that churches bring forward 12 cases a year for her department to expedite. Randy Lippert, criminology professor at the University of Windsor and author of Sanctuary, Sovereignty, Sacrifice: Canadian Sanctuary Incidents, Power, and Law, suggests that the Conservative government has not been good for sanctuary. Compared to previous administrations, there is little dialogue between sanctuary providers and the government, either publicly or privately.

To a certain extent, these congregations are performing a vital function. All legal institutions make mistakes. “In criminal law, for example, we have very robust protections: the presumption of innocence, the requirement that the government prove the person committed the crime beyond a reasonable doubt,” says Rehaag, and yet the criminal system still makes occasional mistakes. And the success rate of sanctuary is fairly impressive: just under 60 percent of individuals in sanctuary become Canadian permanent residents.

But there is a significant cost to providing sanctuary. For one thing, it’s a huge commitment of time and energy: in the late 1980s, periods in sanctuary averaged a few months; today, more than two years isn’t uncommon. It also requires a substantial investment financially. Congregations must raise enough funds to support the refugee, and this can range from a couple thousand dollars to more than $15,000 a year, depending on the circumstances. Since the refugee cannot leave church property, supporters have to perform all their errands, from grocery shopping to laundry. “It felt like they did everything for me,” says Akinwalere. “They had amazing strength and generosity. They did everything except swallow my food for me.” The First Unitarian Church in Ottawa had a volunteer witness sleep over every night with their refugee to ensure that someone was present in case police came to make an arrest. “It’s not just like providing a lunch for street people,” says Creal. “This is total, 24-hours-a-day responsibility.” Despite being drained of resources and energy, congregation members report feeling enriched by the experience. “At its best,” says Creal, “it can be a hugely positive experience for a community and congregation. You’re doing something for someone in need, and it can change you.”

The future of this medieval reincarnation is uncertain. Parliament has been tossing a bill back and forth for the past few years that would see the legislated formal appeal process implemented. In 2007 the House of Commons approved the bill (then called C-280). In 2008 the Senate approved it. Unfortunately the House did not have time to approve the Senate amendments before the election was called in September 2008, and the bill died. A new version of the bill, sporting a few amendments and now called C-291, was brought before the House of Commons in April by Thierry St-Cyr of the Bloc Québécois. But after a second reading, Parliament decided to suspend it indefinitely. Whether Bill C-291 will ever pass is uncertain. If it does, and the IRB implements a formal appeals process, the premise for providing sanctuary will essentially fall away. But Rehaag cautions that even with improved processes in place, it may not signal the end of sanctuary. “Even if the refugee appeal division was implemented there would still be mistakes that would occur,” says Rehaag. “It’s possible that people would then try to turn to sanctuary in order to avoid being deported to face persecution, torture, or death.”

The congregation at Ottawa’s First Unitarian Church were trying to protect Rai from just that when they took him into sanctuary on February 27, 2007. After a two-year-long campaign on the part of Rai’s support team, their efforts finally paid off. CIC decided to admit him as a skilled worker (he is a sushi chef) and to allow that a brief trip across the U.S. border would satisfy the deportation order he had sidestepped by entering sanctuary. This type of brief exit and return to Canada is called “flagpoling,” and it is sometimes used by Canadian residents who have to re-enter the country to officially immigrate.

At 7:45 a.m. on Thursday, April 23, Michael Cassidy and his wife waved goodbye as Showler, Rai, and an immigration official drove to the Canada Border Services Agency in Ottawa. “I was excited,” says Rai, “but I was a little bit nervous also. It was my first time in two years to go outside from the sanctuary.” After an hour-long wait at the CBSA office, Rai and Showler were approached by two large armed officials with ominous looks on their faces. Without acknowledging Showler, they gestured to Rai to get up and follow them. After his processing, Showler, Rai, and the senior CIC official continued their journey to the border. Rai was processed by the CBSA as a refugee exiting Canada and then taken to the nearest border point at Ogdensburg, N.Y. After a spin around the American flagpole (hence the flagpoling), Rai entered Canada as a landed immigrant coming to a job as a skilled worker. “That was when he knew he was a free man and a Canadian,” says Showler. “The look of relief on his face was heartwarming.” Rai’s wife, Dikchhya, and son, Aditya, who are still in Nepal, have also been accepted by Canada and arrived here in mid-June this year to rejoin the husband and father they have not seen for more than a dozen years. Since being free Rai has been scouting for an apartment and exploring Ottawa; he is happy and excited about his new life, but he knows it wouldn’t have been possible without the members of the First Unitarian Church. “They saved my life,” says Rai. “They protected me. I will never forget them.”

As for Akinwalere, the other recent graduate of Canadian sanctuary, she’s keeping busy: she volunteers at a local daycare program and works part-time as a personal support worker in Mississauga, where one of the residents is a former Trinity Anglican parishioner: the cared-for has become the caregiver.

In Montreal, leaning back into the pink sofa, Kader lifts one leg over the other and begins talking about what it’s like being confined in this house. “I miss the feel of rain,” he says. “I miss the feel of the sun.” He constantly dreams of being free and confesses that he never feels like he’s fully living in the present. His supporters have sent letters to members of the government and the opposition, led demonstrations, and held numerous fundraisers—all to no avail. Kader doesn’t know when he’ll be free, if ever. But he’s staying positive.

His bedroom, across the hall, is a cramped space containing a few cherished possessions: a keyboard, a guitar, a blind-assisted computer, a boom box, a coffee machine, and a single bed. As he demonstrates his blind-assisted computer for me, he stumbles upon a poem he’s written. It describes how much he misses freedom. As I read it, he sits on the single bed, lifts the nearby guitar, and starts strumming a melody, then stops. “I’m 100 percent a positive person,” he says. “The future is going to be great for me, once I get my freedom.”

It is because of cases like this that a group of activists is lobbying Toronto council to adopt a policy that would prevent city workers, including police, from inquiring about the immigration status of people seeking services. It would also prevent them from passing on information about immigration status to any federal or provincial agency. “We felt it was essential for a lot of people we were working with to be able to access services without fear,” says Sima Zerehi, a campaign organizer with No One Is Illegal.

Zerehi says the idea came about in 2003, after organizers heard of a similar policy in New York City and began to realize how many of the non-status people they worked with in immigration detention centres had ended up there as a result of trying to access city services. Non-status persons, sometimes called illegal immigrants, are people who entered the country legally but lost their right to remain here, either because their refugee claim was denied or they overstayed a tourist visa. Until they are ordered deported or granted status, they are stuck in a legal limbo, with no official immigration status. And with an estimated 20,000 to 200,000 non-status persons living in Canada—half of those in the Toronto area—Zerehi says it’s imperative the city make it easier for them to access essential services without fear of being reported to immigration authorities.

Campaign organizers say non-status persons are entitled to services because the Canadian economy benefits from their labour. “Communities without status do contribute in a positive way to our economy. There really isn’t any reason why they shouldn’t be offered adequate services,” says Zerehi.

Police routinely ask about immigration status when investigating unrelated matters, such as domestic violence complaints. “If, through the normal course of an investigation, we find people with various immigration statuses, obviously we communicate that to Immigration Canada,” says Sergeant Jim Muscat of the Toronto Police Service.

That’s precisely the kind of situation organizers would like to change. But they realize that even having a policy might not make a difference immediately. For example, schools in Ontario are required to admit children whose parents are “unlawfully in Canada.” Yet, according to Martha Mackinnon, executive director of the Justice for Children and Youth Legal Clinic, about 100 children were denied access to Toronto schools this past year, even though the school board has a policy of admitting non-status children. “We took action, and to our knowledge, everyone was admitted,” she says. “Unfortunately, I think that we need more work on the implementation of the policy, especially at a local school level,” concedes school board trustee Bruce Davis.

With the campaign still in its early days, organizers are hopeful. Mayor David Miller supports the principle that all city residents should have access to city services: “The general policy in our administration is that, unless legally obliged, city workers do not ask about immigration status.” But despite his tacit endorsement and the fact that a variety of community organizations and three city councillors have come on board, the city’s official position is that non-status persons already have access to some services, such as public health nurses and homeless shelters, and that the city is prevented by provincial legislation from providing other services, such as social housing. Under the Social Housing Reform Act, for example, every person in the household must have legal status in order for the entire family to be placed on the waiting list.

Organizers say their next step is to hold a public forum this fall. The sooner council addresses the issue, the better, says Cindy Cowan, executive director of the women’s shelter Nellie’s, who sees first-hand what happens when women at risk are afraid to call the police and why a policy is necessary. “It would reduce the fear,” she says, “and enable women to get the support and services they need.”