Re: Derrick Fonseca
ORB File No: 7846
Hearing held on: Tuesday, May 12, 2026
Place of hearing: Southwest Centre for Forensic Mental Health Care 401 Sunset Drive, St. Thomas
Pursuant to: Section 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Mr. J. Weinstein
Members: Dr. R. Kunjukrishnan Dr. P. Wright Mr. E. Siebenmorgen (by Zoom videoconference) Ms. B. Little
Parties Appearing:
Accused: Derrick Fonseca Counsel: Ms. C. Whillier
The person in charge of hospital: Counsel: Ms. J. Zamprogna
Attorney General of Ontario: Counsel: Ms. K. Dalrymple
REASONS FOR DISPOSITION
(Dated June 3, 2026)
Introduction
[1]. On February 9, 2021, Derrick Fonseca was found not criminally responsible on account of mental disorder (NCR) on one count of assault, contrary to the Criminal Code. Mr. Fonseca was most recently subject to a Disposition of the Ontario Review Board (“ORB” or “the Board”) dated May 21, 2025, detaining him at the Southwest Centre for Forensic Mental Health Care (“SCFMHC” or “the Hospital”), with privileges up to and including living in the community in accommodation approved by the person in charge.
[2]. On May 12, 2026, a panel of the Board convened to review Mr. Fonseca’s Disposition pursuant to s. 672.81(1) of the Criminal Code. Mr. Fonseca was present for his hearing and represented by his counsel, Ms. C. Whillier.
[3]. The issues to be determined at the hearing were whether Mr. Fonseca represents a significant threat to the safety of the public, and if so, the necessary and appropriate Disposition to manage that risk having regard to the criteria set out in s. 672.54 of the Criminal Code.
[4]. When the parties were canvassed for their initial, tentative positions at the commencement of the hearing, counsel for the Hospital submitted that Mr. Fonseca remains a significant threat to the safety of the public and that there should be no change to the current Disposition, other than one condition to be requested by counsel for the Attorney General, with which all parties agreed. That proposed change was as follows:
- that Mr. Fonseca not attend within 50 metres of the victim’s place of residence, employment, or worship.
[5]. Counsel for the Attorney General confirmed her request for the added condition and otherwise supported the Hospital’s recommendation. Counsel for Mr. Fonseca confirmed that Mr. Fonseca was not contesting the issue of significant threat and that there was a joint recommendation as to the necessary and appropriate Disposition.
[6]. For the following reasons, the panel found that Mr. Fonseca continues to represent a significant threat to the safety of the public. The panel further found that the necessary and appropriate Disposition, representing the least onerous and least restrictive option in the circumstances, is a Detention Order on the terms and conditions found in the May 21, 2025 Disposition, with the modification jointly proposed by the parties.
Evidence for the Hearing
[7]. The panel received documentary evidence in the form of a Hospital Report dated March 9, 2026, and a Victim Impact Statement, dated April 27, 2026. The Board also heard oral evidence from Dr. A. Malka, Mr. Fonseca’s attending psychiatrist.
Index Offence
[8]. The circumstances of the index offence are taken from last year's Reasons for Disposition and reproduced as follows:
Mr. Fonseca engaged in an argument with his wife on August 5, 2019 over her consumption of his left-over soup. He became enraged and slapped her with an open hand on the left side of her face, causing swelling to her eye. She contacted the police. Two previous domestic incidents had been reported to the Toronto Police, but were seen as non-criminal in nature. Mr. Fonseca had no criminal record prior to the commission of the index offence.
Following the index offence, Mr. Fonseca was charged with failing to attend court and failing to comply with release conditions (x3) for attending at the home on several occasions while prohibited from doing so.
[9]. Mr. Fonseca’s background and history under the Board’s jurisdiction are described in detail in the Hospital Report, and as the Report is in evidence, this information need not be extensively reviewed in these Reasons. In brief, Mr. Fonseca is now 70 years old. Having been raised in India, he arrived in Canada with his wife and daughter in 1994. He is the sixth of 10 children. He has a university degree from the University of Sheffield, some technical certifications obtained in Canada, and had a stable employment history until he was placed on disability benefits. He is reportedly supported by ODSP and CPP benefits.
[10]. Mr. Fonseca and his wife are now divorced. Their daughter, who resides in Texas, provided information that her parents had an unhappy marriage, with physical violence on both sides. Police were involved in the past, but no charges were ever laid against either party.
[11]. Prior to the index offence, Mr. Fonseca had an extensive history of mental health issues and treatment with antipsychotic medications starting in 1986 and 1987. Health records describe “pockets of psychosis.” He was admitted for psychiatric treatment five times during 2018 and 2019 (four times prior to the index offence and once afterward, in December of 2019). He received some outpatient supports but had a history of noncompliance with prescribed medication.
[12]. Mr. Fonseca first arrived at the Southwest Centre in September of 2020 for an assessment of his fitness to stand trial and was returned pursuant to a treatment order after being found unfit. He remained at the Southwest Centre until his return to a detention centre for his next court attendance in Toronto. Following a criminal responsibility assessment conducted by way of video link (due to the pandemic), he returned to the Southwest Centre on March 1, 2021 following the NCR finding.
[13]. Prior to being treated at the Hospital, Mr. Fonseca presented with a very unstable mental state. He exhibited symptoms of irritability, anger, aggression, grandiosity, delusions and hallucinations. He believed people were aliens and that he was God and created the earth. He was noted to have abnormal movements of his head and neck and was seen shaking his head vigorously side to side. At times, he was selectively mute and did not answer questions or engage with staff. On admission, Mr. Fonseca was aggressive and attempted to assault a nursing staff member while having his cuffs removed. He was placed in seclusion for the safety of staff and of others. He remained in seclusion for one month.
[14]. While in seclusion Mr. Fonseca remained challenging, irritable and dismissive. His anger was directed at everyone, including male and female nursing staff and doctors. He refused to engage, frequently presenting with his back to the seclusion room door. After appearing to settle, staff attempted to engage him to assess whether he could move from the seclusion room. He refused to engage, was slow to respond to the antipsychotic medication and, as a result spent an extended period in seclusion. His symptoms eventually improved with treatment.
[15]. Mr. Fonseca displayed both positive (including persecutory hallucinations) and negative symptoms of his illness during his first year under the Board’s jurisdiction despite maintaining compliance with his prescribed medication. He required much assistance with his daily living activities and verbalized a lack of confidence in living in the community and coping with having a job. He kept to himself and did not readily engage with peers or staff. He was referred for psychological testing, which revealed extremely low (working memory, processing speed, visual scanning, and cognitive flexibility) intellectual functioning. Yet he demonstrated relative strengths in the areas of verbal comprehension, perceptual reasoning, and general attention skills, with particular strengths in declarative knowledge and verbal concept formation. He was also diagnosed with a mild vascular dementia.
[16]. Mr. Fonseca generally presented as depressed and lacking in motivation for activities or any form of programming during his first reporting year. Some improvement was observed in his overall presentation during his second year as he began to take part in more social activities following a change in his medication; however, that medication was later discontinued, due to side effects, without apparent changes in Mr. Fonseca’s mental state.
[17]. The process of seeking out a community living situation for Mr. Fonseca began in October of 2022. Due to his level of functioning and the degree of support he required, an exploration of long-term care (LTC) homes was undertaken.
[18]. Over the course of the most recent reporting period, Mr. Fonseca continued to show evidence of progressive cognitive decline, including word-finding difficulty, impaired memory, and limited insight into his condition and treatment, consistent with vascular involvement of the frontal lobes. He had limited engagement in any programming. Negative symptoms, primarily apathy and social withdrawal, were prevalent.
[19]. The reporting period was marked by significant physical health issues that required multiple hospitalizations and surgery. The details are provided in the Hospital Report. Mr. Fonseca became incapable of making treatment decisions related to certain of these physical health issues. His daughter became his substitute decision maker (SDM). His physical health care needs created challenges for a transition into both community and long-term care (LTC) settings. At one point, in August of 2025, he was scheduled to move into a group home but his physical health issues prevented this.
[20]. Mr. Fonseca is incapable of consenting to his psychiatric treatment. His daughter is his SDM for this. He is incapable of managing his property and the Public Guardian and Trustee (PGT) is responsible for this. Mr. Fonseca’s psychiatric diagnoses are:
- schizoaffective disorder; and
- major neurocognitive disorder.
Evidence of Dr. Malka
[21]. Dr. Malka adopted the contents of the Hospital Report. By way of summary, she advised that there has been no change in Mr. Fonseca’s mental state over the past year and he has experienced very little by way of cognitive decline. In response to a question from a panel member, Dr. Malka said that the degree of Mr. Fonseca’s neurocognitive decline is relatively mild. It had previously been thought to be worse, but it seems to be better with the improvement in his physical health. Dr. Malka considered his psychiatric medications to have been optimized. He still exhibits delusions that are apparent if he is asked about them but is not fixated on them and they do not affect his functioning. Dr. Malka believed that Mr. Fonseca’s neurocognitive disorder at this time has a risk-mitigating impact. One of his more prominent symptoms is apathy, so he does not have much motivation to venture outside of his usual routine, which has involved remaining on his unit most of the time. He attends his meals and engages in activities that he enjoys such as reading the paper or watching sports.
[22]. Dr. Malka advised that because Mr. Fonseca does not venture off his unit, his privilege level is at zero. He continues to reside on a treatment unit at the Hospital.
[23]. Dr. Malka advised that Mr. Fonseca has been adherent to his psychiatric medication. His insight into his illness and need for treatment remains poor and he does not believe that he has a mental illness. His cognitive deficits also negatively impact his ability to be adherent. Dr. Malka attributed the absence of violence on Mr. Fonseca’s part since 2021 to his treatment, structure, and the monitoring of his behaviour. Referring to the current HCR-20 v. 3 risk assessment in the Hospital Report, Dr. Malka confirmed that Mr. Fonseca would be at increased risk if he were not on his antipsychotic medication.
[24]. Dr. Malka updated the panel as to the plans for Mr. Fonseca’s housing in the community, advising that he would be moving into a group home in St. Thomas at the beginning of June of this year. This would begin with a 30-day Leave of Absence (LOA) on June 1. The transition plan includes finding a family doctor for Mr. Fonseca. As for the proposal to eventually settle him into a LTC home, Dr. Malka said that Ontario Health at Home was requiring Mr. Fonseca to first exhaust his ability to function in a group home. She stated that the plan is to continue to assess Mr. Fonseca’s activities of daily living (ADLs) at the group home and provide additional supports as needed. Financially, with the PGT managing his property, Mr. Fonseca would be able to afford his stay at the group home.
[25]. In response to questions from panel members, Dr. Malka confirmed that there is ongoing communication with Mr. Fonseca’s daughter, who lives in Texas, and that the daughter has been informed of her father’s planned move to a group home.
[26]. Dr. Malka confirmed that a Detention Order was still required, as in the absence of medication supervision, Mr. Fonseca would discontinue his medication. In addition, the forthcoming move would be the Hospital’s first opportunity to assess Mr. Fonseca’s ability to function in the community. It would be necessary for the Hospital to readmit him should his condition deteriorate, and also to approve his future accommodation should the group home placement not be successful.
[27]. In response to a question by Ms. Whillier, Dr. Malka clarified that Mr. Fonseca’s prospective group home is not the same residence into which he was scheduled to move in August of 2025. The current residence is staffed on a 24-hour basis. Mr. Fonseca’s medication would be administered by the staff, and his meals would be prepared for him. He will have his own room. He would have the freedom to leave the home at will but would need to return for the administration of his medication. Should he not return to the home when required, the outreach team would be notified and the police would then be called.
[28]. Dr. Malka explained that the transition plan would begin with Mr. Fonseca being taken to the home for meals. He would meet with his doctor, a psychiatrist, at the home. In addition, the occupational therapist who has been working with Mr. Fonseca in the Hospital would go with him, assess how he manages his ADLs in that setting, and work with him if any issues are identified (which is not the current expectation).
[29]. Asked how Mr. Fonseca feels about his upcoming transition, Dr. Malka said that he feels that he is ready, which is different from the degree of hesitation that he expressed in August of 2025 due to the anticipated big change from his routine in the Hospital, a routine that he likes.
[30]. Dr. Malka was asked by a panel member to describe the current content of Mr. Fonseca’s delusions. She replied that Mr. Fonseca believes that his wife is now deceased and that he has a new, younger wife. He does not volunteer these thoughts and they do not seem to affect his day-to-day functioning. He only mentions them when directly asked.
[31]. Panel members asked Dr. Malka whether Mr. Fonseca has expressed a desire to return to Toronto. She replied that he speaks about wanting to go “home” but is aware that he cannot return to the previous family residence. It is not clear to Dr. Malka where Mr. Fonseca thinks “home” is, as he thinks that he will be able to live with his new wife and that they live in a different home. Dr. Malka did not believe that it was plausible that Mr. Fonseca, having the freedom to essentially leave his group home unsupervised, would be able to leave the area and make his way back to Toronto. He has no vehicle and cannot drive. Her expectation was that, although Mr. Fonseca would be able to leave the residence on his own, based upon his history he would tend to treat the group home largely in the way that he has treated his unit at the Hospital.
[32]. No further evidence was led at the hearing following Dr. Malka’s testimony.
Analysis and Conclusions
[33]. The panel accepted the evidence of Dr. Malka and concludes, on her evidence and the Hospital Report, that Mr. Fonseca represents a significant threat to the safety of the public. Again, this matter was undisputed at the hearing.
[34]. Mr. Fonseca suffers from a major mental illness, schizoaffective disorder, and remains symptomatic although his positive symptoms are largely controlled by his medication. That illness was untreated at the time that he assaulted his wife during the index offence and when he later tried to assault a staff member at the Hospital upon admission for an assessment. The Victim Impact Statement illustrates the serious psychological harm flowing from the index offence, even though the physical harm was, fortunately, not severe. It could potentially, however, have produced more serious injuries.
[35]. Mr. Fonseca’s condition is complicated by his neurocognitive disorder. The panel accepts the evidence that without supervision, Mr. Fonseca would forget to take his oral medication which is important to the stability of his mental condition. While Mr. Fonseca takes his medication in a supervised setting, he has a history of non-adherence in the past when in the community. He has not demonstrated actual violence since receiving treatment in the Hospital. The panel finds, based on Dr. Malka’s evidence, that Mr. Fonseca’s violent behaviour has been managed with medication and staff intervention/monitoring in the structured and supervised hospital setting. He has not yet been observed in the community as he has not availed himself of off-unit hospital privileges. In addition, it is noted that Mr. Fonseca has no real insight into his mental health diagnosis and need for treatment.
[36]. Without the Board’s oversight and the support of the Hospital treatment team, Mr. Fonseca would be on his own. On the evidence, he would rapidly become non-adherent with his medication, as he would not be able to remember to consistently take it on his own. At the time of the hearing, Mr. Fonseca was on the verge of transitioning to a group home where staff would administer his medication. However, in the absence of forensic oversight, it is likely that Mr. Fonseca would become non-adherent with his medication. Decompensation of his mental state would soon follow. The active symptoms of his schizoaffective disorder, together with his cognitive deficits, would increase the likelihood of unpredictable violent lashing out at others as a result. Accordingly, the panel finds that Mr. Fonseca represents a substantial risk of engaging in criminal conduct (likely of an assaultive nature) that can cause serious physical or psychological harm to other persons.
[37]. The panel was satisfied that, given the paramount consideration of the protection of the public, and in consideration of Mr. Fonseca’s mental condition and other needs, as well as his interest in eventual community reintegration, the necessary and appropriate Disposition is a Detention Order reflecting last year’s Disposition, with the change previously noted and jointly agreed upon by the parties. There is no air of reality to a Conditional Discharge at this juncture, and no party suggested such a Disposition. from the perspective of managing Mr. Fonseca’s risk to the community. Even though Mr. Fonseca was about to be transitioned to a community group home, it remains important that the Hospital retain the authority to approve Mr. Fonseca’s housing during this very early point in the transition. It is also important that the Hospital have the ability to intervene promptly and proactively and readmit Mr. Fonseca in the event that his community transition is unsuccessful.
[38]. The panel wishes to encourage Mr. Fonseca to work in cooperation with the treatment team and the staff of his group home during the year ahead.
DATED this 3rd day of June 2026, at the City of Toronto, in the Toronto Region.
Eric Siebenmorgen Legal Member
Office of the Registrar Ontario Review Board