In R. v. Stoyko, 2012 ABCA 90, two undercover officers went to the accused's residence to buy marijuana, saying someone at a bar told them he sold it. Stoyko invited the officers inside, asked a few questions about who had referred them and then sold them a half ounce for $180. Stoyko also gave them his cell phone number when he was asked if they could buy the drug again.
Twelve days later the officers returned, bought another half ounce, then obtained a search warrant for Stoyko's home and seized a small amount of marijuana.
At trial in Alberta Provincial Court Stoyko admitted he sold the marijuana but argued he was entrapped by the officer's aggressive and intimidating conduct during their unexpected visit. The trial judge rejected this argument and convicted Stoyko for trafficking.
He appealed to the Alberta Court of Appeal, broadening the scope of the entrapment argument by claiming police conduct in soliciting from him amounted to random virtue testing. In his view, police had no basis to target him for the purchase of marijuana.
There was no evidence to support this claim, the court found. Justice Martin, speaking for the court, noted that the officers were never asked to explain why they chose to target Stoyko and testified that the officer in charge of the investigation directed them to him.
Since Stoyko did not call or elicit evidence in advancing an entrapment defence, he failed to meet the burden of proof which rested on him, not the Crown. Since there was no evidence, it had no air of reality to it.
Stoyko's appeal was dismissed.