Immediate Roadside Suspensions in New Brunswick: Navigating the Murky Waters of Administrative Fairness

We do not condone drinking and driving. We also recognize the importance of ensuring that all legal processes, particularly those with immediate consequences, are administered with transparency, fairness, and accountability.

On January 1, 2025, New Brunswick introduced a measure under the Motor Vehicle Act section 310.06: the Immediate Roadside Suspension (IRS) 

It was introduced to enhance public safety by allowing peace officers to suspend a driver’s licence immediately based on a failed breath test, reasonable suspicion of impairment, or refusal to comply with a demand.

These suspensions can last up to 15 months and may involve penalties such as fines and vehicle impoundment. Affected drivers have 15 days to request a review with the Registrar of Motor Vehicles.

What is the Immediate Roadside Suspension (IRS)?

Under Section 310.06 of the Motor Vehicle Act, peace officers in New Brunswick can immediately suspend a driver’s license for up to 15 months based on a breath test failure, reasonable suspicion of impairment, or refusal to comply with a breath demand. Such suspensions come with significant penalties, including hefty fines and vehicle impoundment.

What Happens at an IRS Hearing when you appeal?

A person who receives an IRS can request a review within 15 days. This review may be conducted in writing or through an oral hearing, either in person or by teleconference. The burden of proof lies with the applicant.

Types of Suspensions and Grounds for Appeal

The IRS appeal process distinguishes between 4 types of suspensions: A, B, C and D.

1. Suspension A: 7-day suspension for novice drivers under MVA Sections 310.02(6) or 310.021(7).

2. Suspension B: Short-term suspension of 7, 15, or 30 days for a BAC (Blood Alcohol Concentration) of 0.05% or higher.

3. Suspension C: Administrative Licence Suspension Under CCC 320.14(1) or 320.15.

4. Suspension D: Immediate Roadside Suspension under MVA Sections 310.06(2)(a) or 310.06(2)(b).

   
   

The grounds for appealing suspensions A and B are relatively broad, including:

• Not being the driver.

• Not being advised of the right to request a second breath test.

• Not being provided with a second test.

• Absence of a written statement regarding the suspension.

• Unreliable results from the approved screening device.

• Not refusing or failing to comply with a demand.

• Not performing poorly on a Standard Field Sobriety Test (SFST).

  
  

  For a suspension A and B, the licence will be suspended for a period of 7 - 30 days, and vehicle will also be impounded.

  
  

The grounds for appealing suspensions C and D are noticeably more limited.

• Not the driver of the vehicle.

• A written statement of the revocation and suspension was not provided.

• The results of the analysis are not reliable.

• Did not fail or refuse to comply with a demand.

• Did not perform poorly on an evaluation.

  
  

Atlantic Defence Law has inquired with the Motor Vehicle Registrar seeking clarity on the differing grounds of appeal. As of the time of writing, no formal response has been received.

For reference, you can find the RCMP policy here, and the IRS appeal form here.

A Breakdown of what we've been seeing

Observations from recent casework

In the course of representing individuals subject to IRS proceedings, our firm has observed a number of recurring procedural challenges that raise questions about fairness in the current process.

1. Lack of Disclosure Mechanism

The IRS program launched without a clear method for drivers to obtain essential disclosure. Crucial evidence such as but not limited to, calibration records, police cards and police notes should ideally be received prior to their review hearings.

In multiple matters, formal court applications were required to obtain this information.

In some matters, hearings proceeded without key disclosure materials being made available, making it difficult for applicants to respond to the allegations..

At the hearing, the burden of proof falls entirely on the applicant. Given the significant evidentiary burden placed on applicants, the absence of proper disclosure severely hampers their ability to mount an effective defence. Essential information such as sworn police reports, ASD calibration records, and detailed officer notes are often not provided, making the task of proving these critical points nearly impossible.

2. Absence of Meaningful Written Reasons

In a fair administrative process, clear and individualized written reasons explaining decisions are typically fundamental, as established in Baker v. Canada (Minister of Citizenship and Immigration), where the decision of the administrative body significantly impacts an individual's life. In contrast, our clients routinely receive generic, boilerplate responses that fail to address critical questions regarding the officer's conduct or evidentiary errors. Without detailed reasons, applicants are left unable to effectively challenge these decisions or even understand the basis of their suspensions.

Comparable administrative authorities in other provinces, such as British Columbia, clearly outline thorough reasoning and explicitly address evidentiary inconsistencies.

3. Reliance on Unsworn Police Reports

In some cases, Registrar decisions have relied on unsworn narratives from police officers. This practice directly conflicts with precedents set by Canada's highest courts. As established by the Supreme Court of Canada in Goodwin v. British Columbia, sworn evidence and proper calibration data for ASD’s are essential to maintaining fairness in administrative processes involving immediate roadside consequences.

Additionally, the British Columbia Court of Appeal, in Murray v. Superintendent of Motor Vehicles, explicitly determined that roadside suspension panels act outside their jurisdiction when relying on unsworn officer reports. This raises an interesting point given that New Brunswick appears to share key similarities with British Columbia’s framework

Fighting for Fairness: Judicial Reviews

Our firm currently represents several clients in judicial review matters before the Court of King’s Bench. These reviews raise legal questions concerning procedural fairness, access to disclosure, evidentiary requirements, and written reasons.

We are also engaged with the Office of the Ombud in New Brunswick regarding broader concerns arising from the IRS process.

If you or someone you know has received an Immediate Roadside Suspension, contact our office. We can assist with your review hearing or with applying for judicial review under Rule 69 of the Rules of Court within the required timelines.

This post is for informational purposes only and does not constitute legal advice. The content reflects general legal principles and is not intended to criticize any government body or decision-maker.