The evidence was that several other officers were present to hear the comment, including the Shift Sergeant. It was the evidence of Constable H. before the Hearing Officer, then Deputy Chief Christine Silverberg, that the comment negatively affected her ability to communicate honestly with Cst. Once misconduct was established, the Human Rights Code could once again provides guidance in sentencing factors. The substantive model of equality looks to the effect or result of the differential treatment rather than treating everyone in the same manner. It recognizes that comments can have a greater impact on a female recipient than if the recipient were a male because of the unequal position of women and men in society and the workplace.
More weight is given to the impact on the victim rather than the intent of the perpetrator.
The Commission notes in Drennan that this liability clearly requires management to take preventive or disciplinary action in order to avoid liability. The Commission found that at the time of the incident a culture of inappropriate conversation existed within the Hamilton-Wentworth Regional Police Service and that such behaviour was routinely not disciplined by the management of the Service. The Service had not adopted a policy on sexual harassment nor taken other significant steps to confront this problem or bring it to the attention of the members of the Service. The essence of the managerial responsibility is to create an understanding amongst members of a police service that if one engages in certain behaviour, that employee will be subjected to prosecution and penalty. In Drennan, it was found that administering a significant penalty under the auspices of general deterrence is part of developing a new management response.