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.

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