- 416-830-1485
- 40 St. Clair Avenue East, Suite 205, Toronto, ON M4T 1M9
- info@abijustice.org
Bail proceedings determine whether an individual can remain in the community while awaiting further court appearances. These proceedings can be stressful and difficult to understand, particularly for individuals living with acquired brain injury (ABI).
Cognitive, communication, and emotional challenges may affect a person’s ability to participate effectively during the process.
“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.
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, 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.
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. So, different organizations focus on different needs, so choosing the right one depends on your personal situation and recovery goals.
If you are interested in becoming a part of this database, please provide your contact details for more information and further training opportunities.
