A judge has dismissed an appeal from James Lee Busch, who was convicted in the 2019 murder of Martin Payne after he and another inmate escaped the William Head Institution before killing Payne in his Metchosin home, which was near the minimum-security institution.
Busch's defence team argued the trail judge, Justice David Crossin, made an error at the trial, claiming he did not instruct the jury to consider the "enhanced participation" requirement that applies to constructive murder.
In Justice Sheri Donegan's decision, which was made on April 11, she notes that Busch and his co-accused, Zachary Armitage, were tried together but part way through the trial Armitage pleaded guilty to the offence. The focus of the remainder of the trial, and the issue for the jury, was whether or not, or to what extent, Busch was involved in the murder.
Under the Criminal Code, those who aid or abet a person who commits murder can be found guilty of the crime even if they don't take part in the actual offence. Even if a murder is not pre-planned, a charge can still be elevated to first-degree murder if the death is caused by the perpetrator while committing other serious offences like kidnapping or forcible confinement.
During trial, the Crown contended that Busch and Armitage killed Payne together as co-principals. In an alternative position, the Crown also argued that Busch could be convicted of first-degree murder as an aider as most evidence was circumstantial and it was not clear exactly what Busch's role was in the murder.
The defence argued that Busch was either never inside Payne’s home; he was inside the home, but played no role in the killing; or he was only inside the home after the killing, and he assisted in a cleanup of the crime scene.
On July 7, 2019, Busch and Armitage escaped from the prison before Payne was murdered in his home the next day.
"Mr. Payne’s body was discovered days later, lying face down on the bathroom floor of his home in a pool of blood, with duct tape on his leg and arm. A forensic pathologist concluded that Mr. Payne died from multiple sharp wounds and opined that the injuries were caused by at least three weapons," noted the judge's decision.
At the time of their arrest, Busch was wearing Payne’s ball cap and carrying his backpack, while Armitage was wearing Payne’s hiking boots and hoodie.
Donegan, along with the rest of the three-judge panel responsible for Busch's appeal, found that Crossin made no error in his charge to the jury, saying the "instructions were clear and comprehensive, and properly distinguished between the various routes to liability," before dismissing the appeal.
