ONTARIO COURT OF JUSTICE
NEWMARKET
BETWEEN:
THE REGIONAL MUNICIPALITY OF YORK
— AND —
KHAC TRAN
RULING ON APPLICATION UNDER s 44(1)(d) of the PROVINCIAL OFFENCES ACT
Heard: January 23, 2026.
Delivered: January 23, 2026
Ms. Katrina Craparotta counsel for York Region
Mr. Khac Tran ................................................................................................... self-represented
KENKEL J.:
Introduction
1Mr. Tran is charged with driving while his license was under suspension contrary to s 53(1) of the Highway Traffic Act, RSO 1990, c H.8 (HTA).
2The matter has twice been referred to this court under s 44 of the Provincial Offences Act, RSO 1990 c P.33 (POA). It was first referred after a set date appearance in April of 2025, then again from the trial in November by a different Justice of the Peace. The Justice of the Peace presiding at trial apprehended a fitness concern during the course of Mr. Tran’s testimony.
3I agree with the prosecution that the issue of Mr. Tran’s capacity to conduct his defence needs to be examined. The court heard submissions from Ms. Craparotta who happened to be the prosecutor at trial. Mr. Tran responded to the court’s questions and his wife provided other details about his health.
4Section 44 can be engaged at any stage of a provincial offence proceeding before sentence is imposed where the court has reason to believe the defendant suffers from a mental disorder – s 44(1). The Justice of the Peace presiding at Mr. Tran’s trial was right to refer this matter to a judge for a hearing based on what was said at the time.
5Section 44 of the POA does not use the Criminal Code term “fitness to stand trial”, but the concept is the same – Real Estate Council of Ontario v Chua, 2013 ONCJ 251 at para 14. The section title “Trial of Issue as to Capacity to Conduct a Defence” shows that the inquiry focuses on the ability of the defendant to participate meaningfully in the trial process which is also the purpose of the fitness test set out in s 2 of the Criminal Code – R v Bharwani, 2023 ONCA 203 at para 167.
Capacity in this Case
6On this application Mr. Tran was able to discuss the matter with the court in terms that showed he was oriented as to time and place and that he understood the nature of the charge. He wants to continue his trial. With assistance, he recognized the potential penalties that may result after trial.
7The court also heard evidence that Mr. Tran was recently hospitalized involuntarily for two weeks due to a mental health condition. The prosecution advised that the license suspension that led to the charge was also related to mental health concerns.
8Fitness requires evidence that the accused is able to meaningfully participate in his trial. The test balances that minimum requirement with recognition of the autonomy of the participant and Mr. Tran’s right to conduct his own defence – R v Bharwani at paras 75-76.
9Fitness is assessed at the time of the application, although apparent fitness cannot be so fragile or fleeting that meaningful participation in a trial on a subsequent day is uncertain.
10It appears that the concern at Mr. Tran’s trial was his reference to “aliens” during his testimony. I’m advised that it was the possibility Mr. Tran was expressing delusional beliefs that caused a reference to this court.
11An accused is not unfit to stand trial merely because he holds delusional beliefs, even where those beliefs relate to his defence – Bharwani at paras 76-78. Even active delusions during trial do not necessarily undermine capacity where the accused can refocus with assistance. It is only where delusions overwhelm the capacity of the accused to understand the proceedings and make and communicate decisions that fitness is compromised.
12It does not appear to me today that Mr. Tran is unable to conduct his defence due to mental disorder. I’m mindful that fitness is to be assessed at the time of the application. However, given multiple referrals and evidence of recent hospitalization under the Mental Health Act, RSO 1990, c M7 (in circumstances where he would not meet the fitness criteria), I find further evidence is necessary. To assist in this determination, I will order that the defendant Mr. Tran attend for a psychiatric examination – POA ss 44(2), (5).
13York Region can determine whether they wish to proceed with this prosecution. If so, they will make the appropriate arrangements with a forensic psychiatrist.
Delivered: January 23, 2026
Justice Joseph F. Kenkel