The right to defend is personal. The defendant, and not his lawyer or the
State, will bear the personal consequences of a conviction. It is the
defendant, therefore, who must be free personally to decide whether in
his particular case counsel is to his advantage. And although he may
conduct his own defense ultimately to his own detriment, his choice
must be honored out of “that respect for the individual which is the lifeblood of the law”.
Given that the principles of fundamental justice contemplate an accusatorial and adversarial system of criminal justice which is founded on respect for
the autonomy and dignity of human beings, it seems clear to me that the
principles of fundamental justice must also require that an accused person
have the right to control his or her own defence. The appellant has properly
pointed out that an accused will not be in the position of choosing whether to
raise the defence of insanity at his or her trial unless he or she is fit to stand
trial. If at any time before verdict there is a question as to the accused's ability to conduct his or her defence, the trial judge may direct that the issue of
fitness to stand trial be tried before matters proceed further (see Criminal
Code, s. 543, now s. 615). Thus, an accused who has not been found unfit to
stand trial must be considered capable of conducting his or her own defence.
An accused person has control over the decision of whether to have counsel,
whether to testify on his or her own behalf, and what witnesses to call. This is
a reflection of our society’s traditional respect for individual autonomy within
an adversarial system. In R. v. Chaulk, supra, I indicated that the insanity
defence is best characterized as an exemption to criminal liability which is
based on an incapacity for criminal intent. In my view, the decision whether
or not to raise this exemption as a means of negating criminal culpability is
part and parcel of the conduct of an accused’s overall defence.
 Justice Wilson wrote a concurring decision, and on the
matter of an accused’s right to control his or her own defence, she
stated, at para. 164:
Like the Chief Justice, I find it unnecessary to deal with ss. 9 and 15 of the
Charter since I agree with him that the common law rule as enunciated in
R. v. Simpson (1977), 35 C.C.C. (2d) 337, and R. v. Saxell (1980), 59 C.C.C.
(2d) 176, infringes the accused’s s. 7 right to liberty in that it deprives the
accused of control over his own defences contrary to the principles of funda-
mental justice. I accept the appellant’s submission that to permit the Crown
to tender evidence of insanity against the wishes of the accused is to counte-
nance too great an interference with the fundamental right of an accused to
advance whichever defences he considers to be in his best interests and to
waive those which he considers are not. I agree with the appellant that to
allow the prosecution to raise the issue of insanity can completely distort the
trial process because of the impact it can have on other defences raised by the
accused, on the jury’s assessment of his credibility, and on the traditional role
played by defence counsel in an adversary system.
 It should be noted that R. v. Swain says nothing about
how a trial should be conducted or about whether an amicus curiae
may be appointed in circumstances where a person exercises his
or her right to not have legal representation.