Katrina Sole Kahler

Olga Ajgirevitch was charged with operating a conveyance with a blood alcohol concentration exceeding 80 mg within two hours of ceasing operation.

She challenged the admissibility of breath samples based on alleged breaches of her Charter rights (ss. 8, 9, 10(b)) and argued the Crown failed to prove the evidentiary requirements for the breath samples.

The court found no Charter breaches, specifically that there was no arbitrary detention or realistic opportunity to consult counsel before the Approved Screening Device (ASD) demand.

The court also found the breath samples met the evidentiary requirements despite a deficient sample during the second test.

The accused was found guilty as charged.

Olga Ajgirevitch applied for a stay of proceedings under s. 24(1) of the Charter, alleging a violation of her s. 11(b) right to be tried within a reasonable time.

The key issues were the start date for calculating delay (arrest vs. information sworn) and whether the COVID-19 pandemic constituted an exceptional circumstance justifying delay.

The court, bound by Supreme Court and Court of Appeal precedents, ruled that the delay clock starts from the date the information was sworn (November 9, 2020), not the arrest date.

It also found that the COVID-19 pandemic and its systemic impacts were exceptional circumstances, justifying a deduction of delay.

After deducting defence-attributable and exceptional delays, the net delay was below the 18-month presumptive ceiling.

The application for a stay was dismissed.