The actual terminology in the law is “likely to incite hatred”. The issue that has arisen here is that there is no intent requirement; there's an impact requirement.
As I said in answer to your previous colleague, our concern is not actually with the substantive content of the text, nor with the decisions of the tribunal. We do agree there's room for a civil remedy.
The problem we have with this provision, as with the provincial ones as well, is procedure. There is a lower threshold. There is no attorney general's consent. There's no requirement of intent. Anybody can complain. There are no costs to the complainant. The commission investigates on its own. The complainant doesn't have to appear. It becomes very easy to abuse.
What we have seen is substantive abuse in various jurisdictions, including the federal one, and that's the problem.