In this case there was no need for the court to decide new law. There was no doubt about what the applicable law was. The jury had to choose between murder and manslaughter, depending on what it found the accused's state of mind to be. The law on this is settled, but the jury wanted clarification.
The jury had asked: "In 'layman terms' what is the difference between murder 2 and manslaughter? Examples? … A specific definition of manslaughter?"
The judge answered not by giving examples or by giving a definition of manslaughter, but instead by repeating the definition of murder. He did not address manslaughter because he did not want to confuse the jury, and because he did not want the jury to disobey his instruction to convict on one charge by acquitting on both.
The minority (Fish J, with McLaughlin CJ and Deschamps J concurring) held :
The majority (Cromwell J, with Abella, Charron and Rothstein JJ concurring) agreed with the majority in the Alberta Court of Appeal, holding that on the agreed facts the accused was guilty of manslaughter (he had thrown what he claimed was a heavy baseball bat into a group of people), so the only issue at trial was whether the accused was guilty of murder. Also, the judge had invited the jury to ask questions if they had difficulty.
The Court of Appeal had not addressed the question of whether the only issue in the case could be decided without comparison with the mens rea for manslaughter. The Supreme Court majority concluded :