Editor's Note: In her "Who's Going Down" series of posts, Robson Hall Law Student A. Sandhu looks at episodes of popular television shows and analyzes them through a criminal law lens for an insightful, comical and fun application of criminal law to popular culture.
Who’s Going Down? - Jessica Jones
Episode: AKA Ladies Night
In the Netflix Original Series, Jessica Jones, a couple die after being shot multiple times in an elevator by their own daughter, Hope. Had this incident occurred in a Canadian jurisdiction, who would be criminally responsible for the killing? It is possible that the answer to this question is no one.
While your first instinct may be to assume that Hope was not criminally responsible due to mental disorder, this is not the case. Hope was not suffering from a mental disorder at the time of the killing, she was compelled to kill her parents through mind control administered by the villain of the series, Kilgrave.
Is it possible that Hope could be convicted of the murder of her parents? In answering this question, the effect that the mind control had on Hope must be considered.
If the mind control caused Hope to enter a state of automatism, she would lack the voluntariness required to fulfill the factual causation component of the actus reus. It is quite possible that Hope was in an automatic state during the killing, as she appeared to be in a dazed and unaware state.
However, Hope describes the feeling she experiences while being mind controlled as “not wanting to do [an act], but wanting to do [the act]”. This statement seems to imply that the mind control does not cause Hope to enter an automatic state, but causes her to feel an irresistible impulse to perform the act. This would be relevant when considering the mens rea elements of the crime. In the case of R v Abbey, the Supreme Court established that committing a crime due to an irresistible impulse caused by mental disorder is not sufficient to find the accused not criminally responsible. Based on this, perhaps an accused would not be exempt from criminal responsibility if their crime were caused by an irresistible impulse brought upon by mind control.
Regardless of whether or not Hope is criminally responsible for acting on impulses brought upon by the mind control, the mens rea for neither first nor second degree murder can be established in this case. First degree murder requires planning and deliberation, neither of which Hope did. Second degree murder requires intention to kill or intention to cause bodily harm likely to result in death. Again, whether or not she intended to kill her parents depends on the way in which the mind control worked. If Hope was in an automatic state, she would essentially have been unconscious during the killing and therefore would not have formed the intent to kill. On the other hand, if she simply felt irresistible impulse to shoot her parents, if the urge was so strong that she was no longer able to form the realization that shooting her parents would likely result in their death, she would not have the necessary mens rea for second degree murder.
It seems that Hope did not have any awareness that shooting her parents would result in their death while she was committing the act. Immediately after the shooting, it appears that Hope “snaps back” to reality. She looks down at her parents, and it is only at that point that she realizes that they are dead and begins to scream and sob. It appears that while she was shooting them, she had no idea that it would result in their death.
Since it cannot be established that Hope had the necessary mens rea to be convicted of the murder of her parents, Kilgrave must be criminally responsible for the crime, right? Actually, it’s not that simple. Even if it could be proven that Kilgrave used mind control to force Hope to kill her parents, it may be difficult to convict him due to section 228 of the Criminal Code. This section states that one cannot kill by influence of the mind alone.
It is not possible to examine real life instances of mind control through Canadian case law, as mind control doesn’t exist (I hope). However, the closest real life phenomenon to mind control is hypnosis. In the Alberta cases of R v Wolansky and R v Book the court recognized that hypnotism could potentially cause an accused to enter an automatic state.
In R v Wolansky, the accused refused a breath sample after driving erratically. The accused claimed that he was in a state of automatism at the time of the refusal due to having been hypnotized earlier that night. The court considered the defence, but ultimately decided that that there was sufficient evidence to conclude that the accused was not in a state of automatism at the relevant time.
In R v Book, the accused was charged with impaired driving when his blood alcohol level was 0.08 over the legal limit. He used the defence of non-insane automatism due to be hypnotized earlier in the night. The court accepted the defence and the charge was dismissed.
There have been no Canadian cases in which a hypnotist has been charged for compelling another person to commit a crime. This is most likely because it is generally accepted that while hypnosis increases suggestibility, it cannot be used to compel people to commit crimes. However, if a hypnotist decided to try and hypnotize another person to commit a crime, they might be charged under section 21(1)(c) of the Criminal Code for abetting another person in committing a crime.
In conclusion, given the current state of law, it appears that no one would go down for the murder of Hope’s parents. Hope lacks the mens rea, and possibly the actus reus of the offence. Kilgrave would likely be exempt from liability due to section 222 of the Criminal Code. However, should a mind control crisis ever occur, I’m sure parliament would try to enact legislation to make mind control illegal. I’m not sure how effective they’d be though, considering that the mind controllers could just use their power to prevent parliament from enacting such legislation. Unfortunately, if people begin to gain the power of mind control, parliament will still not be the hero we wanted them to be.
Jessica Jones, 2015, Netflix (Burbank, Cal: ABC Studios, 2015).
R v Abbey  2 SCR 24, 39 BCLR 201.
Criminal Code, RSC 1985, C-46, s 228.
R v Wolansky 2015 ABPC 128,  AWLD 3086.
R v Book 1999 ABPC 149, 45 WCB (2nd) 98.
Sheldon, Levy, “Hypnosis and Legal Immntability” (1955) 46:3 J Crim L & Criminology.
Criminal Code, RSC 1985, C-46, s 21(1)(c).