Evidence shows that sustaining a traumatic brain injury (TBI) increases the risk of criminal justice system involvement, including incarceration. In addition to the physical changes experienced after brain injury many of the following common cognitive, emotional and behavioural symptoms/impairments can increase the chance of interaction with police and the justice system:
- Anger management issues
- Challenges with processing information
- Engagement in high risk behaviours
- Inability to initiate which can be perceived as defiance
- Inappropriate emotional response
- Lack of impulse control
- Memory impairments
- Perseveration
- Poor judgment
Statistics on brain injury and incarceration
The incidences of incarceration were higher among study participants with prior traumatic brain injury compared with those without one. Men and women who had sustained a TBI were about 2.5 times more likely to be incarcerated than men and women who had not sustained a TBI.[1]
- TBI is more prevalent among males as than females in incarcerated populations[2]
- The majority of the incarcerated participants reported having a TBI prior to their first criminal offence[3]
- The average age of first TBI was 19.6 years for men and 21.9 for women inmates
- 55% of women reported TBI prior to first crime
- 41% of men reported TBI prior to first crime[4]
How does brain injury fit in the current criminal code?
Traumatic brain injury does not fit appropriately in the criminal code. It currently falls under the definition of “mental disorder” which is defined as “a disease of the mind.” Individuals living with the effects of acquired brain injury may experience mental health issues, such as anxiety, depression and suicidal thoughts, but the brain injury itself is not a mental disorder.
The improper classification of brain injury as mental health disorder causes a cascading effect. Judges are unable to order the proper assessment[5], so are therefore not able to get an accurate picture of the impairments which may have contributed to the criminal behaviour. Without an accurate assessment, judges are unable to give sentencing that would focus on rehabilitative needs and upon release, the individual is likely to re-offend.
Indigenization of the Canadian correctional system
Indigenous peoples are the most over-represented ethnicity in Canada’s criminal justice system. A recent report from Canada’s prison ombudsman has warned, “the proportion of Indigenous people in federal custody has hit a record high of more than 30% due to disturbing and entrenched imbalances”. The situation is particularly dire for Indigenous women, who account for over 40% of the female prison population.[6]
Traumatic brain injury accounts for a substantial proportion of injuries in indigenous North American populations.[7] Unfortunately, while indigenous populations are much more likely to experience serious brain trauma, they are much less likely to receive appropriate rehabilitation, or have access to other post-discharge programs and services.
A proper definition of TBI in the criminal justice code will grant greater power to judges to fulfil the Gladue Principle in sentencing as it relates to their acquired brain injury. Gladue refers to a right that Aboriginal People have under section 718.2 (e) of the Criminal Code. Gladue asks judges to recognize the unique circumstances of Aboriginal offenders and focus on a traditional Aboriginal justice approach, which is more restorative in nature and may not include jail time. This restorative approach will help reduce the drastic over-representation of Indigenous people in Canadian jails.
Key recommendations
- Amend the Criminal code to include a proper and accurate definition of acquired brain injury.
- Ensure there is a place in the criminal code for assessments specific to ABI. This would allow judges to have the ability to order a report that would assist the court in determinations of disposition or judicial interim release.
- Brain injury and proper assessment, including the Gladue principle where applicable, added as a consideration in sentencing to ensure there is a focus on rehabilitative and restorative approach, rather than just punitive.
How to advocate for criminal justice system reform for brain injury
- Write government representatives and members of the criminal justice system about the need for an updated definition in the criminal justice code.
- Share information and statistics about TBI and the criminal justice system with your network
- Support Canadian groups that are advocating for criminal justice reform
