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VOL. 77 PART 3 MAY 2019
• Bird applied to the B.C. Supreme Court for a writ of habeas corpus.
Murphy J. (whose decision against habeas corpus in Bird’s case in
1913 had been disregarded by Chief Justice Hunter) denied the
application, without argument, on June 26.
• Bird and Ladner travelled together by ferry to Victoria, where the
Court of Appeal was to convene to hear the test case.
• At some point during this flurried period, Robert Cassidy, K.C.,
was engaged to argue Munshi Singh’s case together with Bird. Cassidy—“
a very eminent K.C.” of about 60, “regarded as very
resourceful counsel”34—barely had time to prepare; he was the
third choice as two other candidates to serve as counsel alongside
Bird had declined. One firm that had been approached,
McCrossan & Harper, noted in its refusal letter of June 24 that
“we feel that the matter … has got beyond the realm of such legal
proceedings” and “it seems to us that it is a question for diplomacy
rather than law”.35
• The Court of Appeal’s full complement (Macdonald C.J.A. and Irving,
Martin, Galliher and McPhillips JJ.A.) heard the appeal over
two days: Monday, June 29, 1914 (the day after Archduke Francis
Ferdinand was assassinated in Sarajevo) and Tuesday, June 30,
1914. The courtroom was full. As one newspaper reported, “forty
spectators occupied all the available seats in the courtroom and
among them were half a dozen Hindus, all wearing their turbans.
They stood, stalwart and solid, six-footers all of them, when the
crier announced the coming of their lordships”.36
• Cassidy (focusing on the orders-in-council) and Bird (focusing on
the Immigration Act) made a range of arguments that were
described in the later reasons for judgment37 as “many and varied”
and “ingenious”. The arguments included that the Immigration Act
was ultra vires as it amounted to an interference with civil rights
under s. 92 of the British North America Act, 1867 (as it then was),
that the orders-in-council improperly amounted to absolute prohibitions
or blanket determinations when entry was to be assessed
on a case-by-case basis, that there was no evidence that Munshi
Singh was an unskilled labourer rather than a farmer, that the term
“Asiatic race” (by that time used in both the statute and an orderin
council) was too indefinite to apply or that it did not apply to
Munshi Singh, and that Canada could not discriminate between
“citizens and races of the Empire”.