Re: David Simonic
ORB File No: 8125
Hearing held on: Tuesday, February 25, 2025
Place of hearing: Centre for Addiction and Mental Health 1001 Queen Street West, Toronto
Pursuant to: Section 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Mr. C. Fraser
Members: Dr. W. Johnston Dr. R. Wood Hill Mr. D. D’Intino Mr. J. Cyr
Parties Appearing:
Accused: David Simonic Counsel: Mr. M. Schloss
The Person in Charge of Hospital: Representative: Dr. P.L. Darby
Attorney General of Ontario: Counsel: Mr. M. Feindel
REASONS FOR DISPOSITION
(Dated April 10, 2025)
Overview
On August 8, 2022, David Simonic was found not criminally responsible (NCR) on Criminal Code charges of sexual assault, forcible confinement and failure to comply with probation. Mr. Simonic is currently subject to a disposition of the Ontario Review Board (the Board) dated December 11, 2023, which detains him at the Forensic Service of the Centre for Addiction and Mental Health, Toronto (CAMH or the Hospital) with the outer limit privilege to live in the community of the Greater Toronto Area in accommodation approved by the person in charge.
On February 25, 2025, this panel of the Board convened a hearing at CAMH to conduct Mr. Simonic’s annual review pursuant to s. 672.81(1) of the Criminal Code. Mr. Simonic attended the hearing and was represented by counsel. Mr. Simonic’s father also attended the hearing. A Slovakian interpreter provided consecutive translation for Mr. Simonic (and his father).
The issues for the Board to decide were first whether Mr. Simonic remains a significant threat to the safety of the public, and if so, what is the necessary and appropriate disposition for the coming year based on a consideration of the factors in s. 672.54 of the Criminal Code.
At the outset of the hearing, the parties were asked for their initial positions. The Hospital representative, Dr. Darby, submitted that there should be no change to the current disposition. Crown counsel, Mr. Feindel, supported the Hospital position. Mr. Schloss, on behalf of Mr. Simonic, submitted that a conditional discharge would be appropriate. Counsel advised that Mr. Simonic would consent to the inclusion of a residence term to live at his parent’s address, 701 Don Mills Road, apartment 810, Toronto, Ontario and would consent to treatment pursuant to s. 672.55 of the Criminal Code. Counsel also said his client would agree to a Young provision which would require his client to attend at the hospital for assessment and admission. The issue of significant threat to the safety of the public was not contested by the parties at the hearing.
For the reasons which follow, the Board finds Mr. Simonic is a significant threat to the safety of the public and the necessary and appropriate disposition for the coming year is the current detention order, unchanged.
Index Offences
- The circumstances surrounding the index offences are outlined in last year’s Reasons for Disposition as follows:
“From Toronto Police Service Synopsis:
Sexual Assault & Forcible Confinement Charges:
‘On Sunday July 18th, 2021, the victim arrived at 43 Thorncliffe Park Drive, in the City of Toronto. The accused was already loitering in the vestibule of the lobby. The victim and accused entered the lobby and made their way into an elevator. The elevator arrived on the 7th floor and another tenant exited the elevator, leaving the accused and victim alone. As soon as the elevator door closed, the accused who was standing facing the complainant pulled out his unerect penis above his waist band and began shaking it and stroking it while looking at the complainant. After a couple seconds, the accused moved in closer to the complainant, who moved around the elevator in an attempt to gain distance. The complainant pointed out a security camera to the accused, which did not deter him.
The elevator door opened on the 17th floor and the complainant attempted to exit, only to be prevented from doing so. It was at this point the accused forcibly pushed her against the wall and grabbed her left breast on top of her clothing. The complainant attempted to fight off the accused, who continually had his penis out and visible. As the elevator doors opened on the 18th floor, the complainant was able to fight off the accused and exited the elevator. The accused stayed on the elevator and eventually made his way to the lobby and fled the building on foot, making good his escape.
By committing the above offence of Sexual Assault and Forcible Confinement, the accused is in willful noncompliance of his Order of Probation. The incident was captured on video surveillance. The accused was identified through Police who know the accused. An immediate search commenced for the accused. After fruitless efforts, a warrant was sought.
On Monday July 19th, 2021, uniform officers from 53 Division attended the residence of the accused's mother. The accused was located inside and arrested without incident. The accused is on conditions not to be found at the mother’s address. He was arrested and transported to No. 53 Division, where he was charged accordingly and held pending a show cause hearing.’
Failure to Comply charge:
‘On Monday July 19th 2021, uniform officers from 53 Division, where detailed to search for and locate the accused, who was wanted in relation to a sexual assault Occurrence, (21-1348725), from the day before July 18th, 2021. At approx. 11:00 am, officers attended the home address of the accused mother, 701 Don Mills Road, Toronto. This is an address the accused is prohibited from attending, both from his Order of Probation and Release Order. Officers located the accused inside and he was arrested without incident. He was read his rights to counsel and transported to No. 53 Division, where he was charged accordingly and held pending a show cause hearing. By being found at 701 Don Mills Road, the accused is in willful noncompliance of his Probation and Release Order’.”
Background and Course Since Last Hearing
The hospital report dated February 19, 2025 (ex. 1) provides a detailed description of Mr. Simonic’s background and the report should be referred to for this purpose. In brief, Mr. Simonic is 29 years of age and has current diagnoses of schizophrenia and polysubstance use disorder (amphetamine-type and cannabis). He is incapable of making psychiatric treatment decisions. He can manage his financial affairs. He has been under the jurisdiction of the Board for approximately 3.5 years.
Mr. Simonic reported using alcohol as a teenager and using cocaine when he was 21 years of age, daily, until he started using crystal methamphetamine in 2020. Mr. Simonic reported stopping crystal methamphetamine later in 2021. He reported that he used cannabis daily while in the community.
Mr. Simonic’s first psychiatric admission appears to have been in 2016 when he was assessed for fitness to stand trial on a sexual assault charge. In the period prior to the commission of the index offences for this hearing, Mr. Simonic engaged in many incidents of sexually inappropriate behaviour including masturbating in public, loitering at a pool and staring at young females. On the sexual assault charge for which he was assessed for fitness, he was eventually found fit to stand trial after being subject to a treatment order with antipsychotic medication.
Mr. Simonic incurred further criminal charges and was admitted to Waypoint Centre for Mental Health Care (Waypoint) in 2018 on a treatment order. He was diagnosed with schizophrenia and treated with antipsychotic medication. Mr. Simonic has been subject to three separate treatment orders for various criminal charges over the course of many years. His mental status has consistently fluctuated resulting in repeated involvement with the criminal justice system and forensic hospitals to address treatment and stabilization issues.
Mr. Simonic’s criminal record was filed as exhibit 3 at the hearing. The criminal record includes several convictions for failure to comply with court orders and a conviction for indecent act in 2020. The sentence included credit for a lengthy period in jail of 329 days.
Prior to the NCR offences, there were many police contacts for sexually inappropriate behaviour, aggression and damage to property. In the first month of his admission to CAMH in August 2022, he assaulted five co-patients resulting in seclusion and restraints.
In the earlier part of this clinical year 2023, Mr. Simonic continued to engage in frequent and aggressive behaviour, often resulting in the need for seclusion. These incidents are highlighted in the hospital report at pages 24 to 25.
In March 2024, Mr. Simonic went AWOL on an escorted pass. He apparently made his way to his father's home and was brought back to the hospital a day later. Mr. Simonic reported that he went to a bar and drank vodka. He was apparently charged with breaking a window during which he suffered an abrasion to his right hand.
On September 23, 2024, Mr. Simonic initiated a physical altercation with another patient in the lounge. Mr. Simonic punched and kicked the other patient. He refused to go to the seclusion room. He became increasingly agitated, yelling, and punching a wall and threw a hamper towards the nursing station.
Mr. Simonic felt that the secure forensic unit was noisy and intrusive. Mr. Simonic’s behaviour has recently improved and at his most recent case conference, the decision was made to transfer Mr. Simonic to a general forensic unit. This occurred last week on February 19. Mr. Simonic is currently prescribed paliperidone which is received intramuscularly every four weeks and lithium 900 milligrams daily. At times, he has refused his lithium medication.
Mr. Simonic attended one session only of his substance relapse prevention program and at times has denied that he has any history of substance use. Mr. Simonic has also refused to consider participation in the sexual behaviours clinic at CAMH.
Mr. Simonic in the past year participated in dialectical behaviour therapy (DBT) with an occupational therapist. He has also worked on the unit cleaning.
Mr. Simonic was approved for DSO funding and now has a Passport worker who visits him regularly to engage in activities.
Mr. Simonic's main support remains his father who is his substitute decision maker for treatment decisions as Mr. Simonic is being deemed incapable. Mr. Simonic and his father maintain regular phone contact and his father will visit on occasion.
Mr. Simonic, in the past year, has continued to demonstrate little insight into his mental illness. More will be said about this in the evidence of Dr. Darby.
Evidence at the Hearing
Dr. Darby gave the evidence for the Hospital. The doctor is not Mr. Simonic’s attending psychiatrist but because Mr. Simonic had several treating psychiatrists over the course of the last clinical year, Dr. Darby was asked to give the evidence for the Hospital. The doctor fully informed himself regarding the clinical record for Mr. Simonic. He also spoke with members of the clinical team on unit 3-2 where Mr. Simonic was resident for most of the year.
Dr. Darby met with Mr. Simonic yesterday and despite what Dr. Darby described as a difficult course under the Board over the past year, Mr. Simonic believed that he would be discharged home at the conclusion of today's hearing to reside with his mother and father. Dr. Darby noted that there has been improvement over the last short while with Mr. Simonic, which is reflected in his most recent transfer to a general forensic unit.
Despite this, Dr. Darby cautioned that in the clinical year, there were episodes of aggression and the AWOL incident in March. Mr. Simonic self-reported using alcohol and damaging a window. The doctor noted that episodes of seclusion have significantly reduced over the last 9 to 12 months, which is a positive development.
There have also been times when Mr. Simonic has requested to be placed in seclusion as he was finding the unit (3-2) noisy and hectic and he preferred the seclusion environment. This was a special arrangement which the Hospital accommodated for him.
Mr. Simonic’s participation in programming is described at the bottom of page 25 of the hospital report. This included engagement in a variety of programs including wellness walks, music appreciation, the cooking group, PET therapy. More recently Mr. Simonic has agreed to 1:1 psychotherapy which is anticipated to commence shortly.
Dr. Darby described Mr. Simonic as continuing to have deficits regarding insight into his major mental illness, substance use, and the causal link to engaging in aggressive behaviour.
Mr. Simonic provides inconsistent responses in terms of whether he acknowledges having a substance use problem. Dr. Darby considered this a significant risk factor. The doctor also pointed out the use of alcohol during the AWOL incident in March.
Mr. Simonic lacks insight regarding his illness and need for medication. At times, Mr. Simonic will acknowledge he has schizophrenia, but he does not make the link to his aggressive behaviour.
Dr. Darby noted that Mr. Simonic still has the unreal expectation that after the hearing (today), he would leave hospital and return to the family home. This was not a view shared by Dr. Darby and he communicated this to Mr. Simonic yesterday when they met.
Dr. Darby described the milieu on unit 1-5, the general forensic unit, as quieter with a higher complement of allied health staff including a behaviour therapist, recreational therapist and social worker.
Mr. Simonic also has a Passport worker through the Developmental Services Ontario (DSO).
The doctor indicated that in the coming year, the team will work with Mr. Simonic and his family to identify appropriate housing options for him including potential options in the DSO housing program. Unfortunately, the waitlists are extremely long with DSO housing. In some cases, years.
Dr. Darby understands Mr. Simonic's wish to return home, but it is not an environment that the team or Dr. Darby endorses as consistent with public safety at this time.
Dr. Darby said that Mr. Simonic's father also holds an unrealistic view on his son’s ability to cope with his mental illness and substance abuse if lives at home. It has also been reported that on occasion when Mr. Simonic speaks with his father on the phone, he becomes upset. Recently, the interactions between the two have been better.
Dr. Darby suggested there was no air of reality to a conditional discharge as it would mean Mr. Simonic would be free to leave the hospital within a couple of weeks once the disposition was issued. Dr. Darby’s view is that Mr. Simonic would leave hospital at the first opportunity and return to the family home. Dr. Darby said there are too many identified risk factors that would be inadequately addressed in the family home to manage his risk for the coming year on a conditional discharge.
In response to questions, Dr. Darby noted that there was a time when Mr. Simonic was prescribed clozapine and took it for a short time. It was too short of a time to assess the efficacy of this medication. The doctor noted that Mr. Simonic has improved on the paliperidone, and this is to his credit. The doctor confirmed that the last incident of overt violence was the assault on a co-patient in September 2024.
Mr. Simonic is now at privilege level 4 which is accompanied passes to the community. He has had this privilege level for the last few weeks.
Dr. Darby was asked if Mr. Simonic agrees that he has a major mental illness. At this point in the evidence, Mr. Simonic interjected and indicated “no”.
The doctor did not support a Young provision as it did not add anything other than a requirement that he report to the Hospital. He would still have to meet criteria under the provisions of the Mental Health Act for ongoing admission in the hospital.
In response to questions from Mr. Simonic’s counsel, Dr. Darby indicated he had never seen a situation where on a breach of a conditional discharge disposition, a Justice of the Peace required an accused to be kept in hospital pending a new Board hearing. Dr. Darby said he does not have legal training, and he was commenting as a clinician because he was asked. The doctor did not support the use the Mental Health Act (on a conditional discharge) as there was too much uncertainty and it would not adequately address critical issues of risk management.
Dr. Darby was asked if staff had visited Mr. Simonic’s family home to assess if it is appropriate accommodation. Dr. Darby stated that they have not as this is not anywhere close to reality for several reasons. The doctor pointed out Mr. Simonic’s continuing lack of insight, his risk for substance use, and his father exhibiting limited understanding of his son’s illness, his status under the Board and the risk his son poses when he is unwell. The social worker apparently advised Dr. Darby that she had spoken with Mr. Simonic’s father and described his insight as limited. The social worker offered to provide more education about the forensic system to Mr. Simonic’s father, but he was not interested.
Dr. Darby also noted that he had reviewed the note of Dr. Jones surrounding the AWOL incident in March and at that time, Mr. Simonic’s father gave evasive and vague answers about what his son did when he was AWOL and generally downplayed the events, including that he had broken a window and been charged. The status of this charge is unclear.
Dr. Darby indicated he had considerable concerns if Mr. Simonic was residing in the family home, including compliance with medications, risk of substance use and the team lacking confidence that the father would report events or keep the team informed if there was mental status decompensation or substance use by his son. To their credit, the family did call the Hospital to inform them of Mr. Simonic’s AWOL in March.
Mr. Simonic is not on any housing waitlists as more work needs to be done to identify what level of housing will be required and to engage with DSO services around this issue. The doctor noted that there is an intellectual disorder and as well the language issue which presents challenges for Mr. Simonic to intellectualize the concepts he learns in programming. On a positive note, Dr. Darby noted that Mr. Simonic’s English has improved recently.
It was noted that Mr. Simonic has a diagnosis of malingering and a high PCL-R score of 30 out of a possible 40. Dr. Darby indicated that a score of 30 calls for concern regarding risk management.
Dr. Darby was asked about the privilege ladder and the various steps, and the hope is that Mr. Simonic will be at level 5 at the next case conference. These privilege passes are reviewed every four weeks. Level 5 would be indirectly supervised on hospital grounds which the Hospital will be very careful to grant given the AWOL history and Mr. Simonic’s salient risk factors. It usually starts with shadowing by staff and 15 to 30 minutes indirectly supervised on hospital grounds and proceeds from there with longer periods. The privilege ladder is used to ensure safety of the public before a community living residence is considered.
Dr. Darby was asked if Mr. Simonic would return to hospital voluntarily if he was on a conditional discharge. Dr. Darby indicated no, he did not believe that he would.
Dr. Darby said that decompensation in the event of stopping medication would likely be several weeks before he became floridly psychotic because he is currently on an intramuscular medication (long acting). The doctor said he would be worried about substance use as potentially shortening that time frame. He was also concerned about interpersonal conflict as reflected by the high PCL-R score.
The panel observed that Mr. Simonic was becoming increasingly agitated during the hearing and nearing the conclusion of Dr. Darby’s evidence, Mr. Simonic abruptly stood up and started walking with purpose out of the hearing room directly past Dr. Darby with his middle finger saying repeatedly to Dr. Darby in a highly menacing manner “fuck you, fuck you, fuck you”. The panel observed that it is exceedingly rare to see this threat level in an accused during the hearing and the actions towards Dr. Darby were shocking and completely unprovoked. At this point, we recessed the hearing to determine the next course of action.
Upon returning to the hearing room, Mr. Simonic’s counsel advised that his client did not wish to return to the hearing and that counsel had clear instructions from Mr. Simonic to proceed in his absence. Crown counsel and Dr. Darby did not oppose this, and the panel made the order absenting Mr. Simonic from the hearing at the request of his counsel.
Mr. Roman Simonic (father) gave evidence at the hearing. The father confirmed that he has communicated to his son that he is going to be discharged from hospital and that it would be much better for his son if he lived with his parents. The father maintained that communication would be better if his son lived at home, and outbursts would not happen like the one that was witnessed at the hearing. Mr. Roman Simonic indicated this was all because of frustration.
Mr. Simonic was asked if he believed his son had a major mental illness and his response was equivocal. He was asked about his knowledge of the index offence which he tended to minimize and suggested it was touching a girl in an elevator and wanting to talk to her, and she claimed she was raped.
It was confirmed there is a room in the apartment for their son if he was given a conditional discharge with a term to reside at the family home. Mr. Roman Simonic is currently not working, and his wife is not employed, and she is collecting a pension.
Mr. Simonic agreed that if he had a problem with his son that he would call the police.
He was also asked if his son refused medication would Mr. Simonic advise the Hospital. He indicated that if his son was aggressive, he would call the Hospital. Mr. Simonic said that if his son refused to come to the Hospital at his request that he would contact the police.
The father was asked if Mr. Simonic would stay in the hospital if he was asked to by his father. His father indicated he could not say exactly because his son is tired and wants to be home.
Mr. Simonic had no knowledge of his son’s sexually inappropriate behaviour while in hospital since the index offences. He said his son had learned his lesson regarding the circumstances surrounding the index offence of sexual assault and it would not happen again.
No further evidence was called at the hearing.
In closing submissions, the parties maintained their initial positions from the outset of the hearing.
Analysis and Conclusion
The Board finds that Mr. Simonic is a significant threat to the safety of the public based on s. 672.5401 of the Criminal Code, and Winko, and its related authorities.
The Board notes that the issue of significant threat was not contested by the parties. Despite this, the Board makes its own finding of significant threat based on the expert evidence of Dr. Darby, as supplemented by the hospital report.
The Board notes in the hospital report at page 27 that even on a detention order, Mr. Simonic’s risk for future violence is considered high on the HCR-20 V3 which was conducted during the current clinical year.
Mr. Simonic was scored on the STATIC-99R which placed him in the well-above average risk category for being charged with, or convicted of, another sexual offence. Individuals placing in this category are seen to have criminogenic needs in several areas with a high risk to re-offend unless mitigation efforts are undertaken in a proactive manner. As noted, Mr. Simonic has refused to participate in the Sexual Behaviour Clinic at the Hospital. This is a significant risk factor given the index offence and other sexually inappropriate behaviour exhibited by Mr. Simonic on many occasions during his young adult life.
Mr. Simonic’s total score on the PCL-R fell in the 90th percentile in a reference group of forensic psychiatric males placing him in the high range for the presence of psychopathic traits. The Board is satisfied that this significantly informs the risk profile for Mr. Simonic.
The Board adopts with approval the following assessment of risk from the hospital report at page 30.
“If Mr. Simonič were to reoffend, it would likely be in the context of medication noncompliance and/or substance use. He has not maintained full compliance with medication even within the hospital setting. In the absence of external monitoring, he will likely disengage with services, use substances and become non-compliant with medication, which will increase his risk of relapsing into a psychotic episode, similar to his mental state at the time of the index offence. He would be at risk of engaging in further sexual or violent behaviours.”
As noted in the expert evidence of Dr. Darby, which the Board accepts, Mr. Simonic continues to exhibit auditory hallucinations, and behavioural instability. There have been multiple risk incidents during his hospitalization where he has been involved in assaultive behaviour and as recent as September 2024 this occurred again. The Board notes he is only at level 4 privileges and much work needs to be done to satisfy the treatment team that even indirectly supervised passes into the community would be appropriate.
The Board unreservedly makes the independent finding of significant threat to the safety of the public.
It bears mention that the way Mr. Simonic left the hearing room in a threatening manner towards Dr. Darby was shocking to the panel. We are an experienced panel, and we have not seen this level of distress and threatening behaviour shown towards a doctor, ever. It clearly demonstrated to the panel that in an agitated state, there is no question that Mr. Simonic poses a significant threat to the safety of the public.
Disposition
The necessary and appropriate disposition is a continuation of the current detention order, unchanged. This order will permit Mr. Simonic to progress on the privilege ladder and if appropriate, housing options will be looked at in the coming year.
The Board is not satisfied that a conditional discharge is necessary and appropriate. The prospect of Mr. Simonic returning home to reside with his parents causes the Board considerable concern in terms of public safety. The Board has no confidence that the father would be proactive in ensuring involvement with the treatment team and the Hospital in the event of his son’s mental decompensation. The Board was left with the distinct impression from the evidence of the father that he would not cooperate fully with the treatment team. To date, he has not done so although he was provided the opportunity to learn more about the forensic system, which he declined. His answers at the hearing were vague and evasive. He minimized and justified his son’s actions, including the deeply concerning conduct towards Dr. Darby.
The Board agrees that a gradual increase in privileges and passes with the support of the team and various social networks will allow Mr. Simonic to integrate safely back into the community, as appropriate. This is a case where the Board is satisfied that much work needs to be done for further community reintegration commensurate with public safety.
In arriving at our conclusion, the Board has carefully considered the s. 672.54 factors including the paramount concern for public safety, Mr. Simonic’s community reintegration, his mental condition and his other needs.
DATED this 10th day of April, 2025, at the City of Toronto, in the Toronto Region.
Mr. C. Fraser Alternate Chairperson
__________________
Office of the Registrar Ontario Review Board