Ontario Review Board
Re: Johnathon D. Smily
ORB File No: 8894
Hearing held on: Tuesday, March 3, 2026
Place of hearing: Southwest Centre for Forensic Mental Health Care 401 Sunset Drive, St. Thomas, Ontario
Pursuant to: Section 672.47(1) of the Criminal Code
Before:
Alternate Chairperson: Ms. T. Mann Members: Mr. E. Siebenmorgen Dr. S. Lessard Dr. A. Kerry Ms. K. Brisson
Parties Appearing:
Accused: Johnathon D. Smily Counsel: Ms. T. Brandon
The person in charge of hospital: Counsel: Ms. J. Zamprogna
Attorney General of Ontario: Counsel: Mr. J. Huber
AMENDED REASONS FOR DISPOSITION
(Dated April 20, 2026)
Please see underlined changes to original reasons made May 26, 2026.
On October 28, 2025, Johnathon Smily was found not criminally responsible by reason of mental disorder of one count of arson, contrary to the Criminal Code of Canada (“the Criminal Code”). The matter of a disposition was referred to the Ontario Review Board (“the Board”). Pending his initial hearing before the Board, Mr. Smily remained in the community pursuant to the terms of an undertaking dated July 25, 2024. To assist the Board in making a disposition at his initial hearing, Mr. Smily was referred to Dr. N. Mokhber at the Southwest Centre for Forensic Mental Health Care (“the Hospital”) for a risk assessment.
On March 3, 2026, the Board convened this panel to conduct the initial hearing for Mr. Smily pursuant to section 672.47(1) of the Criminal Code. Mr. Smily was present throughout the hearing, and represented by his counsel, Ms. T. Brandon. Also present in support of Mr. Smily were two members of his church congregation and several staff from the Hospital’s forensic Outreach team.
Position of the Parties
- At the outset of the hearing, the parties were canvassed as to their respective, without prejudice recommendations to the Board. Counsel for the Hospital and Attorney General were joined in their submission that Mr. Smily presented a significant threat, and that the necessary and appropriate disposition was a Conditional Discharge with terms and conditions has outlined in the Risk Assessment Report dated February 23, 2026. Ms. Brandon, on behalf of Mr. Smily, advised that her client concurred with the proposed recommendation as to the issue of significant threat and the necessary and appropriate disposition. Accordingly, the matter proceeded as an uncontested hearing.
Index Offence
- The following synopsis of the Index Offence, which is consistent with the facts agreed upon at the trial, is taken from the Initial Risk Assessment Report authored by Dr. N. Mokhber and dated February 23, 2026 on p. 2 as follows:
On July 17, 2024, Mr. Smily contacted a friend stating he was hearing voices, believed people were attempting to kill him, and had set a fire in his room to kill himself before at Good Shepherd lodge where he was residing at the time. This friend contacted staff at the Good Shepherd lodge to advise them of their conversation. Staff attended and observed an active fire and Mr. Smiley partially exiting a window while holding a knife. He was persuaded to drop the knife and re-enter the room. Pills were visible on the bed, and a suicide note was later located. He was apprehended under the Ontario Mental Health Act and transported to Bluewater Health, Sarnia.
Background
The panel had before it several documents from the proceedings before the Superior Court of Justice, including:
Information dated July 19, 2024;
Crown Brief Synopsis, dated July 18, 2024;
Release on an Undertaking, dated July 25, 2024;
Report of Dr. W. Komer, dated May 11, 2025 regarding Mr. Smily’s eligibility for a defence of not criminally responsible;
CPIC concerning Mr. Smily current to October 29, 2025; and
Transcript of Proceedings before Justice Poland dated October 28, 2025.
In addition, the Hospital filed an Initial Risk Assessment Report dated February 23, 2026 (Exhibit 1). Combined these documents provide a great deal of information concerning Mr. Smily’s background, mental health history, and perspective of the events leading to the Index Offence. Given that the Risk Assessment Report was made an exhibit it is not necessary to reproduce in detail the information contained within it except to highlight the following points:
Mr. Smily is a 30 year-old single male with a long-standing history of depression, anxiety, polysubstance use and episodic substance-induced psychosis. His biological parents separated when he was an infant. His childhood was marked by physical and sexual abuse, neglect and involvement with child protection services. He lived in foster homes and group homes from early childhood and was eventually made a ward of the Crown. Mr. Smily has a history of behavioural dysregulation in childhood and adolescence including instances of aggression and rule breaking.
Mr. Smily has a lengthy history of contact with psychiatric services from an early age. A summary of his psychiatric history is provided on pages 3-4 of the Risk Assessment Report. Historical diagnoses include mood and anxiety disorders, ADHD, and inconsistent reports of psychiatric disorders. He frequently presented to hospital with depression, suicidal ideation and acts of self-harm, often associated with substance use.
The Risk Assessment Report summarizes Mr. Smily’s substance use history as follows (at p. 4):
Mr. Smily has a severe and longstanding polysubstance use disorder, beginning in early childhood. Substances include alcohol, cannabis, methamphetamine, cocaine, ecstasy, opiates and misuse of prescribed medications…Collateral reports indicate cessation of regular hard drug use approximately one year ago, with brief relapses followed by help-seeking.
Further, the Report notes Mr. Jo’s psychotic symptoms have occurred exclusively in the context of substance use, as has adult aggression.
Mr. Smily has a criminal history related to an assault as well as Provincial Offences Act convictions pursuant to the Highway Traffic Act. He had multiple contacts with the justice system prior to age 18 related to gang involvement and assaultive behaviour.
Mr. Smily has never been married but has been in two common-law relationships of long duration. He and his first common-law spouse share two children, aged 9 and 6; he has not had contact with them since approximately August 2024. Mr. Smily is currently in a relationship with a woman he has known for several years but with whom he became romantically involved a few months ago. They do not reside together. Mr. Smily believes he and his partner will marry in the future.
Mr. Smily was living in the community at the time of the Index Offence and was released pursuant to the terms of an undertaking dated July 25, 2025. Currently he resides in a one-bedroom apartment in Lambton County funded by ODSP and the Canadian Ontario Housing Benefit.
In addition to his partner, Mr. Smily has support from individuals through his church, including his “church mom” and her husband who provide him with significant social, emotional and instrumental support, essentially acting in the role of parents. He works for his church on a casual basis doing landscape and snow-removal.
With respect to the facts and circumstances leading up to the commission of the Index Offence, Mr. Smily reported he was using methamphetamine daily, had consumed alcohol and cannabis, and also ingested prescribed medications. He now acknowledges that his beliefs that day, including auditory hallucinations, were not real and were substance-induced.
Mr. Smily’s current diagnoses are:
a) Substance-Induced Psychotic Disorder (in remission) and
b) Major Depressive Disorder (in remission).
- He is capable of consenting to treatment with psychiatric medication.
Evidence at the Hearing
In addition to the documentary evidence, the Board also had the benefit of oral evidence from Dr. Mokhber. Dr. Mokhber confirmed she was involved in the assessment of Mr. Smily, had authored the Risk Assessment Report and continued to endorse its findings and recommendations. The doctor then provided the panel with a summary of information contained in the Risk Assessment Report, an update of Mr. Smily’s progress since it was prepared and facts in support of the recommendation for a conditional discharge.
Dr. Mokhber advised that over the course of her involvement, and since April 2025, Mr. Smily has remained mentally stable, with no evidence of psychosis or mood issues. He has, however, presented with some situational anxiety. Dr. Mokhber noted that Mr. Smily’s Major Depressive Disorder is currently in remission, but he remains at risk of relapse, especially in the context of psychosocial stress or substance use. The seriousness and chronicity of his depression is such that his prognosis is guarded, and ongoing close supervision of symptoms is warranted.
Dr. Mokhber noted that Mr. Smily has an array of personal and professional mental health supports available to him for ongoing care (psychiatry, nursing, counseling, substance use relapse prevention and faith-based). He also has housing support through Lambton County. Mr. Smily identifies his “church family”, his girlfriend and his faith as strong personal supports.
Mr. Smily’s insight into his Index Offence, mental health needs, the importance of support, his need to remain abstinent and violence risk and is good overall; a potential area of concern in terms of his insight is the uncertainty he has expressed as to his need for medication.
Dr. Mokhber administered the Psychopathy Checklist – Revised (PCL-R) on February 23, 2026. Mr. Smily is significantly below the threshold for a diagnosis of psychopathy.
A re-offence scenario for Mr. Smily is detailed at pp 13-14 of the Risk Assessment Report, as follows:
“Risk of re-offence would increase in the context of substance use relapse, social isolation and untreated psychiatric symptoms. In the absence of current support, the risk of re-offence, specifically arson, would be expected to increase in the setting of substance use relapse, as intoxication or withdrawal can impair judgment, lower inhibition, and exacerbate impulsivity. Social isolation may further elevate this risk by reducing protective factors such as supervision, meaningful daily structure, and access to informal support, while also increasing emotional distress, frustration, and rumination. In addition, untreated or inadequately managed psychiatric symptoms – particularly those involving mood instability, psychosis or impaired reality testing – may intensify maladaptive coping strategies and increase the likelihood of acting out on destructive or fire-setting behaviours. The convergence of these factors would significantly weaken risk-management controls and increase the probability of re-offending behaviours”.
The assessments provided on pages 10-14 of the Risk Assessment Report were endorsed by Dr. Mokhber. Dr. Mokhber confirmed that based on the HCR-20 v3 assessment tool, Mr. Smily’s risk for future violence is LOW while residing in the community with adequate supports as are currently in place. Mr. Smily is not personality disordered. He denies any current violent ideation, intent or planning. He has no active psychotic symptoms, mood instability or behavioural disturbance. There have been no incidents of aggression or dysregulation since April 2025 when he was taken to hospital by police and paramedics following alcohol intoxication, verbal aggression, threat of violence to others and refusal to leave a friend’s home.
Dr. Mokhber in answer to a question confirmed that should Mr. Smily develop psychotic symptoms, the deterioration could happen quickly. However, balancing this is Mr. Smily’s demonstrated propensity to reach out for help, particularly since the Index Offence, which he viewed as “a wake-up call”. He is in need of support and supervision to ensure that the gains he has made are maintained. Dr. Mokhber indicated that Mr. Smily would need to be symptom-free for at least two years before she would be confident that his risk to others had diminished.
With respect to future plans, Dr. Mokhber confirmed that Mr. Smily hoped to pursue further education as well as obtain a career. He also wishes to re-stablish a relationship with his children and be a role model for them.
In answers to questions from the Board, Dr. Mokhber confirmed that Mr. Smily’s supports have access to the treatment team and can reach out should further information be required. In addition, Mr. Smily would have support from the Hospital Outreach team who have training and flexibility in providing mental health and instrumental support for individuals under their care.
In response to a question as to what had changed for Mr. Smily to reduce relapse risk, Dr. Mokhber noted the medications that Mr. Smily was continuing to use, his faith and involvement in his faith community (including his church family), his engagement in relapse prevention support (eg completion of a 6-month substance use disorder program at Bluewater Health in December 2025 and meeting with a counselor every 7-14 days) in addition to his internally-driven motivation to progress.
At the conclusion of the evidence, the parties were again canvassed and remained joined in their submissions.
Analysis and Conclusions:
Legal Framework
The analysis that this Board is required to undertake in coming to its determination is set out in 672.54 of the Criminal Code, R.S.C. 1985, c. C-46. As was stated in Sheikh (Re), 2019 ONCA 692, at para 34, an NCR accused is entitled to their liberty absent a reasonable finding that they constitute a significant threat to the safety of the public: Wall (Re), 2017 ONCA 713, 417 D.L.R. 4th 124. A significant threat is defined in s. 672.5401 of the Criminal Code as “a risk of serious physical or psychological harm to members of the public...resulting from conduct that is criminal in nature but not necessarily violent." There must be a risk that the NCR accused will commit a serious criminal offence. A miniscule risk of grave harm is not sufficient: R. v. Winko, 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at paras 57 and 69. The significant threat must be more than speculative and supported by evidence: Winko, at para 57. That is, there must be both a likelihood of a risk materializing and the likelihood that serious harm will occur: Re Carrick, 2015 ONCA 866, 128 O.R. (d) 209, at para 16.
The inquiry of s. 672.54 of the Criminal Code is a broad one, and must take into account the constellation of factors elucidated by the Supreme Court of Canada in Winko including the circumstances of the original offence, the past and expected course of treatment if any, including but not limited to the present state of the NCR accused's medical condition, plans for the future, the support services existing in the community and, perhaps most importantly, the recommendations of experts who have examined the NCR accused (at para 61).
Significant Threat
The Board agrees with the joint submissions of the parties. In addition, based on the evidence and submissions heard, for the reasons that follow, the Board independently finds that Mr. Smily poses a significant threat to the safety of the public as that test is defined in s. 672.5401 of the Criminal Code.
The Board accepts, in their entirety, the risk assessments and re-offence scenarios set out at pp 10-18 of the Risk Assessment Report, as well as the uncontroverted expert evidence of Dr. Mokhber who has assessed Mr. Smily.
Mr. Smily’s risk is multifactorial and flows from his diagnoses of Substance-induced Psychotic Disorder (in remission) and Major Depressive Disorder (in remission). When mentally decompensation, and/or using substances, he is highly vulnerable to acting out in a serious, criminal and violent way. Arson is a serious criminal offence that could easily lead to physical and psychological injury and loss of life. His risk to public safety is not speculative or trivial.
The Board adopts the following formulation of risk as set out at pp 14 and 15 of the Risk Assessment Report:
“…[A]lthough he [Mr. Smily] is currently psychiatrically stable and has demonstrated good engagement with treatment, this is very early in his rehabilitation and his history indicates that risk for behavioural destabilization and potential violence is closely associated with the relapse of his uncertain psychiatric illness and substance use. These risk factors are dynamic and may re-emerge in the absence of structured monitoring and on-going clinical oversight. Continued ORB supervision provides an important framework to confirm diagnosis, ensure treatment adherence, identify early symptom recurrence, and ensure timely intervention should risk escalate”.
- Although Mr. Smily’s risk of violent behaviour, specifically arson, is assessed as being low in the context of the requisite degree of treatment with psychiatric medications and supportive follow-up, he is still subject to a number of potential destabilizers (history of trauma, stress-vulnerability, maladaptive coping mechanisms, relapsing/remitting nature of his depressive disorder) that have yet to be assessed and managed over a sustained period of time.
Necessary and Appropriate Disposition
Turning now to fashioning the necessary and appropriate disposition, the Board carefully considered whether Mr. Smily’s risk of public safety could be managed by the terms of a conditional discharge and concluded that it could. Mr. Smily’s good behaviour in the community, mental stability, abstinence from substances of abuse, community-based multi-disciplinary mental health support network, pro-social personal supports, adherence to medication and level of insight all combine to give ample support for the parties’ joint recommendation for a conditional discharge.
Regarding the issue of which conditions are necessary and appropriate to include in Mr. Smily’s discharge disposition, the Board agrees that the seriousness of the Index Offence and the established link between Mr. Smily’s symptoms and behaviours and risk to the safety of the public and himself, merits a gradual, supported progression with ongoing conditions.
In this regard, the Board concurs with Dr. Mokhber’s evidence that it is necessary that Mr. Smily be subject to the twin requirements of abstaining from intoxicants and submitting to testing for same. The evidence as to the severity of Mr. Smily’s Substance Induced Psychotic Disorder and his Major Depressive Disorder overwhelmingly favours the need for such a provision to maximize public safety and to provide him with extrinsic support to help him maintain abstinence. It is to his credit, and a testament to his insight into the degree to which the use of intoxicating substances affects his mental health, that Mr. Smily has consented to these terms.
In addition, the Board is encouraged by Mr. Smily’s consent to treatment by way of an order pursuant to s. 672.55(1) of the Criminal Code. In this regard, the Board relies upon, and accepts, Dr. Mokhber’s opinion that Mr. Smily’s consent to treatment, working together with the civil commitment mechanisms available under the Mental Health Act, is sufficient to maintain his mental stability in the community and to ensure his return to hospital in the event of non-compliance and actual or threatened decompensation.
Moreover, in the Board’s view, Mr. Smily’s consent to the proposed “return to hospital” conditions, including a term that he “immediately submit to admission” and “remain admitted until discharged, if directed”, shows a commendable degree of insight into his need for ongoing treatment as well as his potential for relapse in either his mental state or use of substances. It also speaks to his willingness to accept help, trust in medical advice and overall amenability to treatment.
Given Mr. Smily’s demonstrated ability to work cooperatively with housing supports, and his residential stability, there is no need for a term requiring him to live at a specific address.
Currently, Mr. Smily is doing well. He is compliant with medication which appears to have resulted in a significant improvement in his mood stability. He recognizes that substance use was the primary risk factor for his dangerous behaviour at the time of the Index Offence. He is remorseful for having committed the Index Offence and recognizes the factors contributing to it. Dr. Mokhber describes Mr. Smily as a very caring individual with a high degree of empathy for others. It is clear from Dr. Mokhber’s evidence as a whole that she is optimistic that Mr. Smily will contine on his positive trajectory to recovery over the coming year.
However, Dr. Mokhber emphasized that these are early days in Mr. Smily’s recovery, and there is a need to provide further assessment and oversee any treatment changes. He has only been abstinent since August 2025 and his ability to remain abstinence from substances will needed to be tested and monitored. He remains vulnerable to substance use relapse, and his ability to remain abstinent from substances requires a longer period of time to be fully assessed.
Similarly, although his Major Depressive Disorder is currenly in remission, he remains vulnerable to relapse in the context of stress or substance use and requires close follow-up given its role as a driver of Mr. Smily’s behaviour at the time of the Index Offence.
Additionally, offence-specific risk management of Mr. Smily’s fire-setting risk, including education regarding the triggers and consequences associated with arson behaviour, needs to be undertaken. Finally, Mr. Smily is in need of ongoing psychoeducation to reinforce his insight into the role of medication in preventing both mood relapse and psychosis.
Accordingly, the Board finds that the necessary and appropriate disposition is that Mr. Smily be granted a conditional discharge, upon terms and conditions reflected in the Board’s formal disposition.
The Board wishes Mr. Smily well in his on-going recovery over the coming year.
In coming to this determination, the Board has considered the criteria set out in s. 672.54 of the Criminal Code, the paramount consideration being the safety of the public, the mental condition of Mr. Smily, his reintegration into society and his other needs.
DATED this 20th day of April 2026, at the City of Toronto, in the Toronto Region.
Ms. T. Mann Alternate Chairperson
Office of the Registrar Ontario Review Board