With respect to your second question, in my view, context is determinative.
Yes, we can see some of the same or similar language used in some provisions in the Criminal Code that are found in the existing section 38 and in proposals to amend section 38. However, context is king, and the context here is entirely different--not only in the existing act, but we've now also codified in R. vs. D.B. the principle of diminished moral blameworthiness, which is now going to be an explicit part of the act.
Other portions of that case are now explicitly part of the act. Simply to say we have some similar terms and concepts is like looking at Mozart and Lady Gaga and saying that some of the same notes are there.