Court File and Parties

COURT FILE NOs.: CV-20-692 and CV-20-694 DATE: 2023-03-31 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N: PETER RONALD MUIR Self-Represented Plaintiff

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PETER JOHN DOWNING and LAWYER’S PROFESSIONAL INDEMNITY COMPANY (LAWPRO) Erin Kadwell, Counsel for the moving defendant, Mr. Downing Defendants

B E T W E E N: PETER RONALD MUIR Self-Represented Plaintiff

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HEATHER REBECCA BRACKEN and LAWYER’S PROFESSIONAL INDEMNITY COMPANY (LAWPRO) Dawn Phillips-Brown, Counsel for the moving defendant, Ms. Bracken Defendants

HEARD: October 19, 2022 The Honourable Justice C.D. Braid

REASONS ON MOTIONS TO STRIKE OR DISMISS CLAIMS

I. OVERVIEW

[1] In 2015, Peter Ronald Muir was charged with several criminal offences. Peter Downing, a lawyer, represented Mr. Muir at his bail hearing. Heather Bracken, a lawyer, acted for Mr. Muir at his preliminary hearing and trial. Prior to trial, Mr. Muir pled guilty to two drug charges. At the conclusion of his criminal trial, Mr. Muir was convicted by a jury of three Criminal Code offences.

[2] Mr. Muir appealed his convictions and sentence. His notice of appeal included allegations of ineffective assistance of trial counsel. On February 10, 2020, the Ontario Court of Appeal dismissed the appeal.

[3] In two separate actions commenced in May 2020, Mr. Muir sued Mr. Downing (“the Downing Claim”) and Ms. Bracken (“the Bracken Claim”). He also sued the Lawyers Professional Indemnity Company (LPIC) in both actions. On December 23, 2020, both actions were dismissed against LPIC.

[4] Mr. Downing and Ms. Bracken now move for the claims against each of them to be dismissed, stating that they disclose no reasonable cause of action. Counsel for Ms. Bracken also seeks summary judgment on one issue. The following issues arise on these motions:

A. Is there a genuine issue requiring a trial regarding the allegation that Ms. Bracken unduly pressured Mr. Muir to plead guilty to the CDSA charges?

B. Should the Statements of Claim be struck or dismissed without leave to amend?

[5] For the reasons set out below, I dismiss both claims.

II. BACKGROUND

[6] Mr. Muir has had a contentious relationship with the London Police Service (LPS) for more than 15 years. He is convinced that the LPS is a corrupt organization, and that he is working as a whistleblower to reveal that corruption.

[7] On April 27, 2015, the Sheriff and the LPS attended Mr. Muir’s home to enforce a Writ of Possession after he defaulted on his mortgage. He called 911 and advised dispatch that he had a firearm. He told the dispatcher to call off the police and the Sheriff or he would use a projectile weapon, which he clarified was a crossbow. He stated that he had no choice but to react with violence and put an arrow through one of the men or women. He stated that they should back off, or there would be “huge… funerals” and that this was a situation which was “gonna wind up in blood.” He stated that he would defend his life with the crossbow.

[8] This led to a standoff that lasted almost 24 hours. After the standoff ended, police executed a search warrant and seized large quantities of marijuana and marijuana plants from Mr. Muir’s residence.

[9] As a result of these events, Mr. Muir was charged with threatening death to the LPS officers; threatening bodily harm to a local sheriff; possession of a weapon, namely a crossbow, for a purpose dangerous to the public peace; possession of a weapon for the purpose of committing an offence; and production and possession of marijuana for the purpose of trafficking.

[10] Defence lawyer Peter Downing represented Mr. Muir at his bail hearing. Mr. Muir was released on consent, with his parents acting as sureties. The conditions of Mr. Muir's release included a curfew and a requirement that he not attend in the City of London, subject to certain exceptions.

[11] A few months after the bail hearing, Mr. Muir discharged Mr. Downing as his lawyer.

[12] In early 2018, Mr. Muir retained defence lawyer Heather Bracken. She represented him at a preliminary hearing and assisted him in obtaining a bail variation ending the curfew requirement.

[13] Ms. Bracken advised Mr. Muir that he would likely be convicted of the charges based on the overwhelming evidence and his own version of the events. He confirmed this information in writing on two occasions prior to trial.

[14] Prior to trial, Mr. Muir signed written instructions confirming his instructions to plead guilty to two drug charges, namely possession of marijuana for the purpose of trafficking and production of marijuana. The signing of these written instructions was witnessed by another lawyer.

[15] Mr. Muir acknowledged Ms. Bracken’s opinion that he would be convicted if he went to trial on the Criminal Code charges and that he would be sentenced to a period of custody. He further acknowledged that the Crown was willing to resolve matters with no custody if he pled guilty. However, he instructed Ms. Bracken to go to trial.

[16] In December 2018, Ms. Bracken represented Mr. Muir at his jury trial. Justice Leitch held that the defence of self-defence could not be put to the jury because Mr. Muir did not have reasonable grounds to believe the police were acting unlawfully.

[17] The jury found Mr. Muir guilty of two counts of uttering threats (to LPS officers and to the Sheriff), and possession of a weapon, namely a crossbow, for a purpose dangerous to the public peace.

[18] On April 2, 2019, Mr. Muir was sentenced to a custodial sentence of 15 months less 55 days on each count to be served concurrently, and a 90-day sentence on each of the two drug offences to be served concurrently. The trial judge also imposed a two-year probation order that included a term that he not be permitted within the City of London unless he was attending court or meeting with legal counsel.

[19] Mr. Muir appealed his conviction and sentence to the Ontario Court of Appeal. In his Notices of Appeal, he alleged ineffective assistance of counsel, stating that Ms. Bracken refused to enter the front door handle assembly from his home as evidence. He alleged that the door handle would have shown that it was struck with a sledgehammer by the Sheriff. He also appealed his sentence, challenging the probation term that banishes him from the City of London. On February 10, 2020, the Ontario Court of Appeal heard and dismissed his appeal, concluding that the trial judge had applied the proper test for determining whether there was an air of reality to the defence of self-defence.

[20] Mr. Muir believes that Ms. Bracken purposely let him be convicted because she did not enter the broken door handle into evidence. He believes that the evidence would have shown that Sheriff Paul Walker, a Crown witness, was perjuring himself at trial.

[21] In May of 2020, Mr. Muir commenced the Downing and Bracken claims.

III. POSITION OF MR. MUIR

[22] Mr. Muir represents himself in the actions. His submissions on these motions were lengthy, confusing, rambling, and repetitive. He is seeking a variety of relief and orders from the court, including:

• An order for transcripts from the May 14, 2015, bail hearing when he was being represented by Mr. Downing.
• An order for a variety of transcripts of testimony from the preliminary hearing on April 16, 17, and 25, 2018.
• An order for transcripts from the trial of December 10 - 21, 2018, including his own testimony.
• An order for paper copies of transcripts of 911 calls made by Mr. Muir during his April 27, 2015, standoff with police, given to the jury in his trial; and for new transcripts of the 911 call, as well as a CD copy.
• An order for the requisition of a list of the London Superior Criminal Court 2018 trial exhibits ordered destroyed by Justice Leitch.
• An order allowing Mr. Muir to serve Ms. Bracken and her lawyer a book of written questions per Rule 35 of the Rules of Civil Procedure.
• An order granting permission to serve a motion for summary judgment for Muir v. Bracken per Rule 20 of the Rules of Civil Procedure.
• An order for the return of Mr. Muir’s 2014 Samsung smartphone, seized on April 27, 2015, by the London Police because it has pictures of his cats. If the return of his phone is not possible, he would like punitive damages of $25,000 from the London Police.
• Order regarding Belair [believed to be his insurance company].
• Order regarding National Recoveries Centre (Mortgage).
• Orders for LPSB, Koskie Minskie and Attorney General Accountability Payments.
• Order for March 17, 2021 Kitchener clerk identity [believed to be related to his call to the courthouse].
• Order to the SIU to take a fresh look at case 16-ADF-320.
• Order to OPP to look at 2007 murder-suicide of LPS officials [believed to be the deaths of David Lucio and Kelly Johnson].
• Various orders for investigations into the LPS and the Sheriff by the Attorney General.
• Damages totaling $6,212,000 in the two actions.
• An order for his costs.

IV. THE STATEMENTS OF CLAIM

1. The Downing Claim

[23] The Downing Claim advances the following claims:

i. Mr. Muir seeks $1,412,000 in damages for “…negligence, breach of contract, professional negligence, malicious actions, infliction of mental distress, violation of Charter rights, malicious intent, professional misconduct, failing to protect client interests, failure to carry out client’s instructions by proper means, failure to perform with skill and care as a reasonably competent and diligent solicitor.”

ii. Mr. Muir alleges that Mr. Downing was negligent in his representation at the bail hearing; used Muir’s circumstances for unjust, unfair and malicious intent of undue personal financial gain; and failed to argue the condition of curfew at the bail hearing. Mr. Muir also alleges a conspiracy between Mr. Downing, the LPS and the Crown. In particular, he states that Mr. Downing took the position that the curfew condition was necessary for bail, and manipulated his father (one of the sureties) and Mr. Muir to persuade them to agree to the curfew condition. Mr. Muir also seeks damages regarding the bail term that prevented him from being in the City of London.

iii. The Downing Claim also advances causes of action on behalf of the plaintiff's father and mother. It states that Mr. Downing manipulated and engaged in wrongful and malicious communications with the father and that the parents sustained damages, including mental aggravation, loss of enjoyment of life, depression, and physical pain. The parents are not parties to the action.

2. The Bracken Claim

[24] The Bracken Claim advances the following claims:

i. Mr. Muir seeks $4.8 million in damages for “…negligence, breach of contract, professional negligence, infliction of mental distress, malicious actions, malicious intent, violation of Charter rights, professional misconduct, failing to protect client interests, failure of communication, failure to carry out client’s instructions by proper means, failure to perform with skill and care as a reasonably competent and diligent solicitor.”

ii. The claim alleges that Ms. Bracken was negligent in her representation of Mr. Muir. It alleges that she deliberately neglected to enter the front door handle and lock assembly from his home into evidence, which he says would have demonstrated that the Sheriff committed perjury. It alleges that she withheld that evidence for the benefit of the Crown.

iii. The claim also alleges that Ms. Bracken unduly pressured Mr. Muir into pleading guilty to the drug charges.

V. ANALYSIS

A. Is There a Genuine Issue Requiring a Trial Regarding the Allegation That Ms. Bracken Unduly Pressured Mr. Muir to Plead Guilty to the CDSA Charges?

[25] Ms. Bracken moves for summary judgment with respect to the allegation that she unduly pressured Mr. Muir to plead guilty to the drug charges. The court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence: Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[26] On a motion for summary judgment, there is no genuine issue requiring a trial where the judge is able to reach a fair and just determination on the merits. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 49.

[27] Pursuant to Rules 20.04(2)(a) and (2.1) of the Rules of Civil Procedure, the court shall consider the evidence submitted by the parties and may exercise any of the following powers for the purpose of determining whether there is a genuine issue requiring a trial, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[28] What is fair and just depends on the nature of the issues and the nature and strength of the evidence. There is an obligation on each party to “put its best foot forward.” The responding party must present its best case or risk losing: Canada Mortgage and Housing Corp. v. Greenspoon, 2015 ONSC 6882, 64 R.P.R. (5th) 99, at para. 28.

[29] Prior to the start of his 2018 trial, Mr. Muir agreed to plead guilty to the two CDSA charges. He signed instructions stating that he would plead guilty to the two charges and that he understood the consequences of pleading guilty. The signing was witnessed by a senior criminal counsel, Mr. Ron Ellis, as well as Ms. Bracken.

[30] In paragraph 54 of the Bracken Claim, Mr. Muir alleges that Ms. Bracken unduly pressured him into pleading guilty to the two CDSA offences. He does not plead any material facts in support of the allegation.

[31] In his written material on these motions, Mr. Muir claims that Ms. Bracken received death threats and deliberately did not enter the door handle into evidence to protect herself from being murdered. In paragraph 64 of his affidavit, he describes a meeting with Mr. Ron Ellis and another lawyer whose name he does not remember. He states that he “intuitively felt that there was a danger to [his] lawyer Heather” which was solely because of him. Because of that, he agreed to plead guilty to the drug charges. He states, “only then would Ms. Bracken then again represent me.”

[32] I find that there is no genuine issue requiring a trial raised by the Bracken Claim, for the following reasons:

i. Ms. Bracken and Mr. Ron Ellis witnessed Mr. Muir sign written instructions confirming his instructions to plead guilty to the two CDSA charges. Ms. Bracken and Mr. Muir provided affidavits on the summary judgment motion. Mr. Muir agrees that Mr. Ellis was present when the guilty plea was discussed. He does not deny that Ms. Bracken and Mr. Ellis were present when he signed the instructions.

ii. The evidence demonstrates that Mr. Muir understood the consequences of his guilty plea. Although Mr. Muir states that he entered the pleas to protect Ms. Bracken’s life, he only provides speculation and innuendo regarding why he believed her life was in danger. He has provided no real evidence that he was unduly pressured to plead guilty to the two CDSA offences. In fact, there is evidence to the contrary: Mr. Muir acknowledged the likely outcome and freely signed the instructions to plead guilty. The absence of pressure on Mr. Muir is confirmed by Ms. Bracken and Mr. Ellis, who witnessed the signatures.

iii. The evidence in support of those charges was overwhelming, and it is clear that Mr. Muir would have been convicted following a trial. Ms. Bracken's evidence is not contradicted: Mr. Muir instructed Ms. Bracken that he intended to plead guilty to the drug charges so that the trial could focus on the Criminal Code charges regarding the standoff with police.

iv. In addition, there is no evidence to demonstrate that he suffered any harm as a result of his guilty plea to the drug charges. He likely received a shorter sentence on those charges because he pled guilty rather than proceeding to trial in the face of overwhelming evidence.

[33] Mr. Muir had an obligation to put his best evidence forward on the summary judgment motion. He has not provided any real evidence on this issue. The claim that Ms. Bracken pressured Mr. Muir to plead guilty does not raise a genuine issue requiring a trial, and is therefore dismissed on summary judgment pursuant to rule 20.04(2)(a) of the Rules of Civil Procedure.

B. Should the Statements of Claim be Struck or Dismissed Without Leave to Amend?

[34] In addition to Ms. Bracken’s motion for summary judgment as described above, Mr. Downing and Ms. Bracken bring motions for the following relief:

i. To strike out the claims on the ground that they disclose no reasonable cause of action, pursuant to rule 21.01(1)(b).

ii. To have the actions stayed or dismissed on the grounds that each claim is frivolous, vexatious, or otherwise an abuse of process, pursuant to rule 21.01(3)(c).

iii. To strike out the claims without leave to amend, on the ground that the pleadings are scandalous, frivolous or vexatious, or that they are otherwise an abuse of process, pursuant to rule 25.11.

[35] A motion to strike proceeds on the basis that the facts pleaded are true. The claim is to be read generously with allowance for drafting deficiencies: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42; The Catalyst Capital Group Inc. v. Veritas Investment Research Corporation, 2017 ONCA 85 at para 21.

[36] A claim will only be struck if it is plain and obvious that the pleading discloses no reasonable cause of action. The novelty of the claim should not prevent the plaintiff from proceeding: Imperial Tobacco Canada Ltd.

[37] The court has the inherent jurisdiction and residual discretion to invoke the doctrine of abuse of process to control its own process. What constitutes an abuse of process is a discretionary decision. Relitigating a claim that the court has already determined can be an abuse of process: Harris v. Levine, 2014 ONCA 608 at para. 9; Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63 at para. 37.

[38] The following general principles regarding pleadings are applicable in the two actions before the court:

i. Pleadings must clearly identify the causes of action by pleading facts that are material. They must contain a concise statement of the material facts necessary to support the causes of action alleged but not the evidence by which those facts are to be proved.

ii. A party may not plead irrelevant, immaterial or argumentative facts or facts that are inserted only for colour. Allegations that are made only for the purpose of colour or to cast a party in a bad light, or that are bare allegations, are scandalous and will be struck under rule 25.11(b).

iii. Argument and unfounded, inflammatory attacks on the integrity of a party, and speculative, unsupported allegations of defamation will also be struck out as being scandalous and vexatious.

iv. Allegations of fraud, misrepresentation, negligence and conspiracy must be pleaded with particularity.

v. A document that demonstrates a complete absence of material facts will be declared to be frivolous and vexatious.

vi. Documents that are replete with conclusions, expressions of opinion, provide no indication whether information is based on personal knowledge or information and belief, and contain many irrelevant matters, will be rejected in their entirety.

Auciello v. Mahadeo, 2015 ONSC 1267 at para. 32; aff’d 2016 ONCA 701.

1. The Bracken Claim

[39] I find that the Bracken Claim should be struck or dismissed, for the following reasons:

i. The solicitor’s negligence claim would require Mr. Muir to show that he would have been acquitted, but for the lawyer’s negligence. This is an impermissible collateral attack on the criminal adjudicative process and is therefore an abuse of process. The proper avenue for claims of ineffective counsel is the criminal appeal process. The Court of Appeal is better suited to determine allegations of solicitor negligence when they arise from a criminal trial and are raised on a criminal appeal: Harris v. Levine at para. 7; Arconti v. Fenton, 2020 ONCA 489 at para.15.

ii. Mr. Muir raised the issue of ineffective counsel on his appeal of his conviction. Specifically, his notice of appeal mentioned Ms. Bracken’s alleged refusal to enter the front door handle assembly from the home into evidence. Mr. Muir’s appeal was dismissed. The Court of Appeal specifically found that the trial judge applied the correct test regarding self-defence. The allegations of negligence and incompetence raised in the Bracken Claim mirror the issues raised on his criminal appeal. A claim of this nature would allow that plaintiff to re-litigate their criminal trial on issues that are now res judicata. The proper avenue for a claim of ineffective counsel is during the regular appeal process: Michaud v. Brodsky, 2008 MBCA 67, at para. 9. Harris v. Levine, 2014 ONSC 1300, at para. 11.

iii. The claim states that Ms. Bracken's negligence was deliberate and calculated, and suggests “wrongful influence of a third party”. It further states that her negligence “amounted to hiding evidence for the benefit of the crown, to the detriment of the accused.” These suggestions of undue influence or conspiracy are bare assertions without any particularity or supporting material facts.

iv. The claim seeks a remedy under the Charter. However, no Charter remedy is available in these circumstances because Ms. Bracken is a private individual.

2. The Downing Claim

[40] Mr. Downing has brought a motion for the following relief:

i. Requesting that the action be stayed or dismissed on the ground that it is frivolous, vexatious, or otherwise an abuse of process, pursuant to rule 21.01(3).

ii. Seeking an order striking the Claim pursuant to rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, because the claim discloses no reasonable cause of action.

iii. Requesting that the action be stayed or dismissed on the ground that it is frivolous, vexatious, or otherwise an abuse of process, pursuant to rule 21.01(3).

iv. Striking out or expunging all or part of the statement of claim without leave to amend, on the ground that the pleading is scandalous, frivolous or vexatious.

[41] I find that the Downing claim should be struck or dismissed, for the following reasons:

i. The Ontario Court of Justice issued a recognizance releasing Mr. Muir, who was subject to the supervision of his sureties. He did not bring a bail review to challenge the terms of that order. The claim against Mr. Downing is a collateral attack on the recognizance, a court order that was not challenged through the proper channels: Gilbert v. Gilkinson, 205 O.A.C. 188 at para. 13.

ii. The bail restriction placed on Mr. Muir to not enter the City of London was also imposed by the trial judge as a term of probation and was upheld by the Court of Appeal. The validity of this bail term has already been determined by a court of competent jurisdiction which makes this portion of the claim vexatious and abusive.

iii. The crux of the allegations in the Downing Claim is that Mr. Downing allegedly failed to properly represent Mr. Muir at the bail hearing due to a conspiracy and financial bribes from the Crown and police. The claim contains general, ill-defined and disjointed bare allegations, including a wide-ranging conspiracy with LPS and the Crown; fraud; and claims of negligence and malicious intent that are not supported by particulars or material facts. Many of these allegations are unfounded, inflammatory, scandalous, speculative and/or irrelevant.

iv. The Statement of Claim alleges defamation without providing any particulars to support such a claim.

v. The causes of action are only subjective, unsupported allegations based on personal belief. Many of these allegations are contrary to the jury’s decision and the reasons of the trial judge at the criminal trial.

vi. The claim alleges a violation of Mr. Muir’s Charter rights. However, no Charter remedy is available in these circumstances because Mr. Downing is a private individual.

vii. The claim advances causes of action on behalf of individuals who are not parties to the action, which is improper.

viii. Although numerous causes of action are listed, none are supported by material facts. The pleadings disclose no reasonable cause of action. The claim is frivolous, vexatious and is an abuse of process because it is obvious that the action cannot succeed.

3. Conclusion Regarding Both Claims

[42] The Statements of Claim are frivolous, vexatious and an abuse of the process of the court as set out in Rules 21.01(3)(d) and 25.11(b) and (c). It is plain and obvious that the claims disclose no reasonable cause of action as set out in Rule 21.01(3)(b).

[43] No evidence is admissible on a motion under Rule 21.01(1)(b). However, Mr. Muir filed voluminous material on these motions. This material is relevant to whether there is any possible merit to the claims that could be remedied if leave were granted to amend.

[44] I have considered whether it is appropriate to grant Mr. Muir an opportunity to amend his statement of claim to conform with the rules regarding pleadings. I note that the court has granted him several adjournments to provide material on these motions. Despite having filed voluminous documents on these motions, Mr. Muir has not provided evidence to support the claims in any manner. Therefore, the court declines to grant leave to amend the pleadings.

[45] The absence of reality in the unsubstantiated claims, combined with Mr. Muir’s obvious attempts at re-litigating his criminal case, lead me to the conclusion that a dismissal of both actions in their entirety, pursuant to Rule 21.01(3), is the appropriate order to make in this case.

VI. CONCLUSION

[46] For all of these reasons, the Court makes the following orders:

i. The Downing Claim CV-20-692 is dismissed in its entirety.

ii. The Bracken claim CV-20-694 is dismissed in its entirety.

VII. COSTS

[47] The parties are directed to provide written costs submissions, which shall be no longer than two typed pages, double-spaced, in addition to any relevant Bill of Costs. Mr. Downing and Ms. Bracken shall provide costs submissions by April 17, 2023; and Mr. Muir shall provide separate costs submissions for each action by May 1, 2023. If submissions are not received by May 1, 2023, costs shall be deemed settled.

Braid, J. Released: March 31, 2023