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.
Information has been adapted with permission from www.fasdjustice.ca