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Factors To Consider

Voluntary Statements

Individuals with Brain Injury struggle with

These can make people with Brain Injury particularly vulnerable during any interaction with the police. In most cases, the person’s disability is invisible, and as such the police will not be aware of their cognitive challenges. The person may respond without understanding the context of what they are responding too, as well as the ramifications their responses may have.

Some individuals with Brain Injury are also prone to confabulation – a memory that they believe to be true, but is actually a fabrication of the truth.

Therefore, a lawyer representing a client with a Brain Injury should be fully briefed on the circumstances surrounding the accused’s encounter with police and be prepared to explain it in the context of their disability. For example, during arrest an individual with a Brain Injury may:

  • Act inappropriately when touched during arrest due to impulsivity and/or lack of judgement, executive function issues
  • Become aggressive due to complications stemming from their Brain Injury, which could be additionally compounded by sensory overload from noise, flashing lights and activity at the scene or inability to read non-verbal cues gestures
  • Respond inappropriately to what was being asked because of difficulty processing language
  • Be unable to organize thoughts, process information or understand written language.

Additionally, a person with a Brain Injury may be unable to comprehend a waiver of rights, and they may make a statement that waives their rights, without fully understanding what they are doing.

People with Brain Injuries can be vulnerable to false confessions. Many have trouble controlling impulsive behaviour, struggle with poor communication skills and are easily confused which is elevated when they are feeling anxious/under pressure. They may not understand or hear the entire legal caution, become tangential after arrest and say self-incriminating things.

If you suspect that the person you represent may have a Brain Injury and has made a confession, consider first whether there is sufficient evidence of a crime to begin with. If yes, then consider whether:

  • The accused confessed because they felt that was what was expected of them
  • The accused confessed to something they do not have the capacity to remember
  • The accused did not understand the ramifications of the confession
  • The people who conducted or were present at the interrogation were not aware that the person had a disability and therefore did not provide any accommodations
  • The accused made a confession based in part by confabulation or agreeing with statements true or not

Communications with anyone with a Brain Injury should:

  • Be concrete
  • Use simplified language
  • Allow for time to process each statement
  • Be repeated
  • Be written down

The bail hearing is often an accused’s first contact with the court system. From start to finish, bail proceedings and conditions pose difficult challenges for a person with a Brain Injury, and there is risk of compounding charges against him or her.

“People with brain injuries are 14 times more likely to incur a serious charge and 12 times less likely to achieve discretionary release.”

– Matheson F, McIsaac K, Fung K, Stewart L, Wilton G, Keown L et al. Association between traumatic brain injury and prison charges: a population-based cohort study. Brain Injury 2020; 34(6):757-763.

Individuals with brain injury are at a serious risk of breaching their bail conditions as a result of their disability. Challenges with memory, planning, impulsivity and poor judgement all impact an individuals ability to adhere to their conditions.

  • Learn more about challenges associated with brain injury, HERE
  • The Ontario Brain Injury Association (OBIA) has additional resources and tools, HERE

Complying with restrictions such as remaining within a certain area, abstaining from communicating with another person, reporting to police at specified times, abstaining from consuming alcohol or drugs, can be extremely difficult for a person with a Brain Injury. If an accused is released on a promise to appear or on bail, the longer they are on remand the greater their risk of not remembering/being able to comply with their conditions. Again, this should be seen as a sign of their disability and not as them being willfully defiant.

An accused with a Brain Injury should have a support person who understands their disabilities and is able to provide close and comprehensive supervision. If a breach of bail conditions occurs, their disabilities should be taken into consideration and more realistic conditions should be considered. It is wrong to punish the person for their disabilities for which they have no control over. If a court feels it is necessary to impose conditions and the accused is accused of breaching them, advocate that they be dealt with using a non-criminal judicial referral hearing, found at section 523(3) of the Criminal Code.

A Lawyer who is representing an individual with a brain injury, will want to find ways to remind the client about court dates (Printable resources and memory strategies), and Judges may want to consider issuing discretionary bench warrants for an affected individual who is late or fails to appear on a given day. Just as important is the need to consider that an accused with a brain injury may not understand consequences invoked several months after behaviours have occurred, so that sanctions and rewards may have little effect on their future behaviour.

Courtroom Behaviour

In the courtroom, an accused with a Brain Injury may:
  • Not be able to behave according to the conventions and solemnity of the courtroom
  • Not understand the severity of their situation
  • Act inappropriately and or act impulsively or without inhibition
  • Be overly friendly, aggressive or withdrawn
  • Appear to have no remorse or consideration for others involved in the case

Two common reactions of those with sensory processing difficulties are to either shut down or act out. When a person with a Brain Injury shuts down, he or she may “go flat” or display a flat affect, limiting his or her response. Conversely, the accused with a Brain Injury may also act out with verbal or physical rage.

Strategies to get Relevant Information

Strategies to get relevant information from brain injured clients. Be patient and listen carefully. Things to do things to avoid.  Cognitive and memory problems can challenge the ability of a person with a Brain Injury to give a clear and cogent version of events. Instead, the person may tell his or her story in a more circular fashion. Be patient and listen carefully, so that you are better able to identify the key facts. Also remember that individuals with Brain Injury need to associate experiences with concrete activities.

  • Schedule more time for a trial involving a person with a Brain Injury
  • Consider cultural differences in behaviour
  • Speak slowly and repeat frequently
  • Statements and questions should be short and to the point
  • Break information into small pieces
  • Always confirm that what they heard is what you said – do this by having them repeat back to you what they understand
  • If necessary, ask a question in several different ways
  • Allow the person with ABI more time to respond to questions and tasks
  • Read all materials out loud to those who need it
  • Use the person’s name frequently, especially prior to asking a question
  • Use “visuals” as much as possible (simple diagrams, charts, point form, pictures)
  • Consider auditory and visual impairments when situating yourself to them
  • Try having the individual with ABI role play what happened
  • Prompt the person to keep dialogue on task and focused as they may go off topic or compulsively talk without a break
  • Check for comprehension by asking questions about the content of a statement or question, rather than asking if they understand.
  • Give verbal cues when activities are about to change (5 min. – 3 min. warnings, give “heads up” that the something different is about to happen in the court… “In three minutes the court is going to take a break…”
  • It may be useful to have someone to keep notes and write information down for the accused.

If you wish to use audio or video teleconferencing with a person with a Brain Injury, try to minimize distractions by using a separate, quiet room.

  • Avoid inferences
  • Avoid asking multi-step questions
  • Avoid questions containing complex wording
  • Avoid pronouns – use the names of people to whom you are referring
  • Avoid assumptions about the accused’s ability to understand and respond appropriately
  • Avoid double negatives such as “Did you not see…?”

Fitness to Stand Trial

Brain Injury should be considered at every stage of the criminal process. Appropriate representation at trial will mean paying special attention to the accused’s possible inability to understand the consequences of his or her actions, explain those actions, assist in his or her defence, or understand the concept of plea bargaining.

With the passage of time between the offence and sentencing, an accused person with an acquired brain injury has a heightened risk of failure to appear. He or she may also fail to comply with bail conditions, and so may complicate his/her defence or the possibility of diversion and attract additional charges.

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