Ontario Review Board
Re: Mark Smith
ORB File No: 8530
Hearing held on: Tuesday, December 2, 2025
Place of Hearing: Royal Ottawa Mental Health Centre
Pursuant to: Section 672.81(2.1) of the Criminal Code
Before:
Alternate Chairperson: Mr. D. Sandor
Members: Dr. R. Kunjukrishnan
Dr. R. Cormier Mr. J. Weinstein
Mr. A. Bouvier
Parties Appearing:
Accused: Mark Smith Counsel: Ms. M. Munsterman
Person in charge of hospital: Representative: Dr. J. Lehr
Attorney-General of Ontario: Counsel: Ms. E. Davies
REASONS FOR DECISION
(Dated January 15, 2026)
Introduction
On April 3rd, 2024, Mark Smith was found not criminally responsible on account of mental disorder on charges of assault causing bodily harm, assault with a weapon dangerous to the public peace, carrying a concealed weapon and failure to comply with release order, all contrary to the Criminal Code of Canada.
Mr. Smith is currently subject to a Disposition of the Ontario Review Board dated July 3rd, 2025 detaining him at the Secure Forensic Unit of the Royal Ottawa Mental Health Centre (hereinafter referred to as “the Hospital”) with privileges up to and including passes to travel within a 50-kilometre radius of the Hospital, accompanied by staff or a person approved by the person in charge, to participate in recreational or therapeutic activities.
By letter dated September 24th, 2025, the Hospital notified the Ontario Review Board that Mr. Smith had eloped from the Forensic Rehabilitation Unit on September 14th, 2025. He returned on September 18, 2025. His privileges were held and will remain so for the coming weeks thereby constituting a restriction of his liberty.
On December 2nd, 2025, the Board convened a hearing, to review that restriction of liberty pursuant to s. 672.81(2.1) of the Criminal Code. Mr. Smith was present in person and represented by counsel, Ms. Marni Munsterman. Ms. E. Davies, lawyer with the Office of the Crown Attorney represented the Attorney General. Mr. Smith’s supportive mother and grandmother also attended the hearing via zoom.
At the outset of the hearing, the parties indicated that the only issues being canvassed were those associated with the restriction of Mr. Smith’s liberty. No changes were being sought to the reigning Disposition. All agreed that a restriction of his liberty had taken place and was continuing to the date of the hearing. As such, the hearing focused on the following questions:
a. Was the initial restriction of Mr. Smith’s liberty justified and necessary and did it represent the least onerous and least restrictive measure available to the Hospital at the time initiated?
b. Did the restriction continue to be necessary and appropriate and the least restrictive and onerous option available to the Hospital?
The record for the hearing included the Revised Notice of Hearing, dated October 23, 2025, the Hospital’s Restriction of Liberty Notice to the Ontario Review Board, dated September 24, 2025 together with the Board’s response, the most recent Disposition, dated July 3, 2025, the Reasons for that Disposition dated August 8, 2025 and a Hospital Report dated May 28, 2025. On the consent of all parties a Report to the Ontario Review Board dated November 5, 2025 (hereinafter referred to as “the ROL Report”) was entered into evidence as exhibit 1.
For the reasons set out below, the Board has concluded that both of those questions must be answered in the affirmative. We come to this conclusion based on:
a. the context of major mental illness and serious criminal conduct that has posed a significant threat to the safety of the public that has brought Mr. Smith under the jurisdiction of the Ontario Review Board.
b. Mr. Smith’s ongoing struggles with the use of substances, particularly when absconding.
c. The fragile nature of Mr. Smith’s mental stability when the treatment of his psychosis by means of antipsychotic medications is interrupted by abscondments.
d. The Hospital’s representation that, while case conferences are generally scheduled every 6 weeks based on general clinical experience, progress made by Mr. Smith will be met with either early conferences or by not limiting privileges to sequential progression that favours systemic alignment over principled consideration of Mr. Smith’s progress.
Historic context drawn from the record
- As the only issue before the Board was the restriction of Mr. Smith’s liberty, there is no need to repeat in detail the circumstances leading up to the commission of the index offences. Nor is it necessary to detail his personal, criminal, and psychiatric history. The Board was mindful however of the following as drawn from both the most recent Reasons for Disposition and the Hospital Report:
a. Mr. Smith lived a troubled life as a child and adolescent that included significant forms of physical, sexual and relationship traumas. Nonetheless he had a good history of employment that was ultimately interrupted by his use of stimulants such as crystal meth and crack cocaine as an adult.
b. The index offences were violent, random and unprovoked.
c. Mr. Smith’s current diagnoses, according to both the Hospital Report and the ROL Report include
Schizophrenia, multiple episodes, treatment resistant
Substance use disorders, crystal methamphetamine, cocaine, cannabis, severe in a controlled environment
Antisocial Personality disorder.
The Hospital Report also mentions epilepsy and conduct disorder, childhood onset.
d. In August 2024, Mr. Smith had eloped for a period of 48 hours during which he panhandled, avoided contact with both his mother and the police, used substances (including crystal meth, cannabis and alcohol).
e. Prior to eloping, Mr. Smith had expressed his opposition to the Hospital’s directions not to smoke cigarettes (which interfered with the efficacy of his antipsychotic medication) and declared an intention to use cannabis to help him with his major mental illness.
f. Mr. Smith’s impulsivity, particularly when using substances has been an ongoing concern as has his lack of insight into his own vulnerability.
g. The previous panel in their Reasons for Disposition, when ordering a detention disposition with limited privileges, indicated that “progress made over the course of [the past review period] needs to be tested over the course of cautiously expanding privileges in the community.”
h. Mr. Smith can abide by the Board’s disposition and to adhere to treatment. He has worked through extended periods of sobriety (upwards of eight months) in a highly secure setting. He has historically engaged with one-on-one therapy, counselling and group counselling. He has a highly supportive family. He is competent to handle his own finances and maintains good physical health. He has, in the past, accepted that “hard drugs” such as stimulants are decompensating.
Evidence at the hearing
The evidence for the hearing consisted of the ROL Report mentioned above and the viva voce testimony offered by Dr. J. Lehr, a 5th year resident at the Hospital in psychiatry working under the supervision of Dr. S. Gulati. Dr. Lehr is Mr. Smith’s primary treating psychiatrist.
Turning first to the ROL Report, it explains the circumstances of the restriction of Mr. Smith’s liberty. While Mr. Smith maintained his positive progress in Hospital for a month following his last annual review, he eloped on September 14, 2025. He was returned to the unit by the police on September 18, 2025. He reported use of crack cocaine and tested positive for cocaine, methamphetamine and cannabis. He described not sleeping over the course of his elopement and missed multiple doses of his oral antipsychotic medication Clozapine. He had severe sunburns, chapped lips, flushed face and showed signs of dehydration. He admitted to finding a stranger’s bank card and using it without authorization. This unfortunate stumble happened days away from completing one year of sobriety.
Since his return, Mr. Smith has been reengaging with his treatment team. His cognition in November 2025 was observed as being grossly intact. He has maintained good personal hygiene and has not displayed any of the primary symptoms of major mental illness.
In his evidence, Dr. Lehr provided the Board with the evidence it required, notwithstanding the joint submission, to conclude that Mr. Smith had experienced a restriction of his liberty because of his abscondment and substance use. He explained that prior to absconding, Mr. Smith enjoyed a broad array of privileges that included indirectly supervised community access. Upon his return to the Hospital, his privileges were immediately curtailed as the Hospital monitored and assessed the impact of his missed medications and substance use. Following case conferences that took place every six weeks, his privileges were being cautiously increased. At the time of the hearing, he enjoyed supervised access to Hospital grounds and indirectly supervised privileges that permitted him to attend for therapeutic group meetings in the Hospital but not on the unit.
Dr. Lehr justified the cautious approach taken by the Hospital. He explained that, at this stage, it is important that privilege progression is gradual, involves the input of the entire treatment team, and that there be a sustained period of abstinence, engagement with the treatment team, with addictions resources and with therapy. Dr. Lehr tied the increase of Mr. Smith’s privileges to these factors and resisted the suggestion that privilege progression was tied systemically to the frequency of case conferences that are generally held every six weeks. He explained that caution was required in the context of the index offences, Mr. Smith’s history of elopements and substance use when eloping. Dr. Lehr noted that Mr. Smith’s elopements had all happened shortly after the increase in his community access.
Dr. Lehr conceded that Mr. Smith’s medication was now optimized again, that he is attending a Narcotics Anonymous group in the Hospital off the unit, and that extension of his privileges was expected at the next case conference based on Mr. Smith’s progress. Dr. Lehr did not rule out the possibility of jumping the sequential order of privileges on the pass ladder given the progress Mr. Smith was making comparative to the time lapsing between conferences. He noted that Mr. Smith was attending the 10:00 Club (a social and peer support group in the Hospital), had access the gym, to exercise and recreational groups, and was expressing interest in cooking groups and the Bakeology program.
Mr. Smith is accessing everything available to him. This includes the Concurrent Disorders Group, Smart Recovery Group, individual psychotherapy and art groups. He is engaged and generally progressing well though there are concerns associated with what appears to be a growing obsession with gambling. Dr. Lehr attributed Mr. Smith’s residual lack of insight into the impact of substances on his major mental illness to his impulsivity, cravings and antisocial personality traits that support rule-breaking and noncompliance with norms of conduct and social expectations.
Dr. Lehr confirmed that the Hospital was still focused on Mr. Smith’s reintegration into the community. The Hospital was mindful of the fact that Mr. Smith’s difficulties were to be viewed as part of a larger picture that included almost a full year of sobriety, medication compliance and high levels of engagement with available programming. When asked by the panel what was required of Mr. Smith from a clinical perspective to return him to the full range of privileges that he had been extended days before absconding, Dr. Lehr outlined that Mr. Smith needed to:
a. Continue with groups.
b. Complete the CBT for Psychosis group he was now attending.
c. Continue to participate in occupational therapy, in cooking groups and Bakeology.
d. Keep with the concurrent disorders group and Narcotics Anonymous.
e. Engage with the treatment team to address his online gambling.
f. Refrain from the use of substances.
g. Use privileges appropriately and adhere to the Hospital’s rules.
h. Not elope.
The Board did not take this as a checklist, but rather as markers of global development of insight and improvement of supervision response and will represent protective factors in Mr. Smith’s course over the remainder of this review period.
Submissions
At the end of the hearing the parties renewed their submissions largely as presented at the hearing’s outset. Dr. Lehr, speaking for the Hospital maintained that the restriction of Mr. Smith’s liberty was justified and necessary and represented the least onerous and least intrusive option available to the Hospital at the time. He took the position that the restriction continued to be necessary and appropriate and minimally intrusive under the circumstances. Ms. Davies for the Attorney General agreed.
Ms. Munsterman, for Mr. Smith conceded that the initial restriction was justified and necessary but disagreed that it continued to be so or that the ongoing restriction represented the least onerous and least restrictive approach available to the Hospital at the time of the hearing. She highlighted that Mr. Smith was days away from being one year sober at the time of his most recent elopement and that, since his return to Hospital he had not manifest any of the primary symptoms of his major mental illness, was treatment compliant and highly engaged with group programming and with the treatment team. The crux of Ms. Munsterman’s submissions was that Mr. Smith’s privileges were unnecessarily tied to the 6-week scheduling of his case conferences. If this were the case, Ms. Munsterman correctly pointed out that such a systemic approach to pass progression would represent an unjustifiable continuation of the restriction of Mr. Smith’s liberty.
Analysis and Conclusion
As stated, the Board agrees with the joint submission that the initial restriction of Mr. Smith’s liberty was justified, necessary and represented the least intrusive and least onerous option available to the Hospital at the time. This was the second time that Mr. Smith had absconded from the Hospital to use substances that risked a resurgence of psychotic symptoms such as existed at the time of the commission of the index offences. His absconding resulted in a lapse in his receipt of necessary oral antipsychotic medications. Upon his return he admitted to using stimulants and alcohol, was severely sunburned, had not slept for four days, and had to go through the process of titrating up his medications to optimal levels. While he did not show the primary symptoms of psychosis, he was clearly exercising compromised insight and poor decision-making in a context of a personality disorder that manifests itself in impulsivity and rule breaking. A complete curtailment of his privileges was necessary to monitor for resurgent symptoms and assess the impact of the abscondment, drug use and lack of medication on him. There is no doubt that, in this regard, the Hospital was complying with its primary obligation to ensure the safety of the public. Anything other than such a restriction would have both compromised the primary objective and would have represented a lapse in attention to the obligation to ensure that Mr. Smith’s mental health and other needs were met.
The Board further finds that the ongoing restriction of Mr. Smith’s liberty is justified, necessary and represents the least onerous and least restrictive option available to the Hospital. This finding is driven by Mr. Smith’s major mental illness and his elopement and substance use coupled with the Hospital’s evidence that his privilege progression will be the subject of principled consideration of his engagement with the treatment team, his abstinence from the use of substances and his ability to comply with the rules associated with the progressive levels of privileges.
In arriving at this conclusion, the Board does not take anything away from the significant effort Mr. Smith is putting into his treatment. It is however highlighting that, in the context of the index offences and Mr. Smith’s diagnoses, a cautious approach to restoration of privileges is warranted. Mr. Smith is exercising insight into the association between privilege progression and participation with the treatment team. It remains to be seen however whether this understanding of the relationship between engagement and expansion of privileges translates into externally motivated insight (to say nothing of internally motivated insight) into the index offences, his major mental illness, need for medications, deleterious impact of substances and the risk these factors pose to the safety of the public. In the context of his absconding, substance use and personality-driven impulsivity, in our view the Hospital is complying with its primary objective of ensuring the safety of the public when it proceeds with caution. The uncontroverted evidence from Dr. Lehr that Mr. Smith’s privilege progression is not tied sequentially to his scheduled case conferences and that these conferences could be held early if circumstances warrant it, in our view shows the Hospital’s ongoing attention to the principles of minimal intrusion and the importance of ensuring that Mr. Smith’s mental health and other needs, including that of reintegration into the community, are being met.
As a result, the Board has concluded that the restriction of Mr. Smith’s liberty was justified, necessary, and represented the least onerous and least restrictive option available to the Hospital both when initiated and at the time of the hearing.
The Board thanks all who attended and participated in the hearing, congratulates Mr. Smith on his re-engagement with services available to him at the Hospital and encourages his continued progress leading up to his annual review.
DATED this 15th day of January 2026, at the City of Toronto, in the Toronto Region.
Mr. D. Sandor
Alternate Chairperson
Office of the Registrar
Ontario Review Board