There is a lack of consensus regarding the legal test trial judges should apply in deciding whether it is appropriate in a particular case to depart from a joint submission. There are four possible approaches: the fitness test; the demonstrably unfit test; the public interest test; and, the approach that treats the fitness and public interest tests as essentially the same. The public interest test is the proper legal test that trial judges should apply. Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. For joint submissions to be possible, the parties must have a high degree of confidence that they will be accepted. The public interest test, by being more stringent than the other tests proposed, best reflects the many benefits that joint submissions bring to the criminal justice system and the corresponding need for a high degree of certainty in them.
Crown and defence counsel are well placed to arrive at a joint submission that addresses the interests of both the public and the accused. Trial judges should not reject a joint submission lightly. They should only do so where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system. A lower threshold than this would cast the efficacy of resolution agreements into too great a degree of uncertainty.
Where the joint submission is contentious and raises concerns with the trial judge, the following procedures should be followed. First, the trial judge should approach the joint submission on an "as‑is" basis. Second, the public interest test should be applied when a trial judge is considering going above or below the sentence proposed in the joint submission, although different considerations may inform the public interest in each context. Third, the trial judge may inquire about the circumstances leading to the joint submission — and, in particular, any benefits obtained by the Crown or concessions made by the accused. Fourth, the trial judge should notify counsel of any concerns and invite further submissions on those concerns, including the possibility of allowing the accused to withdraw his or her guilty plea. Fifth, if the trial judge's concerns are not alleviated, the judge may allow the accused to withdraw his or her guilty plea. Finally, if the trial judge remains unsatisfied by counsel's submissions, he or she should provide clear and cogent reasons for departing from the joint submission.