College of Nurses of Ontario v. Ormsbee-Posthumus, 2025 ONCNO 76491

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Michael Hogard, RPN Chairperson Kerrie Naylor, RPN Member Kimberly Wagg, RPN Member Sylvia Douglas Public Member Carly Hourigan Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) ALYSHA SHORE for ) College of Nurses of Ontario

• and - )

MATTHEW ORMSBEE-POSTHUMUS ) SEAN ELLACOTT for Registration No. 13551328 ) Matthew Ormsbee-Posthumus ) CHRISTOPHER WIRTH ) Independent Legal Counsel ) Heard: January 30, 2025, ) via videoconference

DECISION AND REASONS

This matter was heard by a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) on January 30, 2025.

The Allegations

The allegations against Matthew Ormsbee-Posthumus (the “Member”) as stated in the amended Notice of Hearing dated January 21, 2025 are as follows:

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(18) of Ontario Regulation 799/93, in that, in or around October 2018, you contravened a term, condition or limitation on your certificate of registration, imposed pursuant to s. 1.5(1)1.(ii) of Ontario Regulation 275/94, in that you failed to report charges relating to any offence to the Executive Director of CNO, and in particular, that you were charged with the following offences on or around October 5, 2018:

a) on or about April 25, 2018 in the City of Kingston in the East Region did, without lawful excuse, make available child pornography in the form of digital image and video files, contrary to s. 163.1(3) of the Criminal Code of Canada;

b) between April 25, 2018 and October 3, 2018, in the City of Kingston in the East Region did, without lawful excuse, possess child pornography in the form of digital video and image files, contrary to s. 163.1(4) of the Criminal Code of Canada; and/or

c) between April 25, 2018 and October 3, 2018, in the City of Kingston in the East Region did, without lawful excuse, access child pornography in the form of digital video and image files, contrary to s. 164.1(4.1) of the Criminal Code of Canada;

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, in that:

a) you failed to report to the Executive Director of CNO that you were charged with the following offences on or around October 5, 2018:

i) on or about April 25, 2018 in the City of Kingston in the East Region did, without lawful excuse, make available child pornography in the form of digital image and video files, contrary to s. 163.1(3) of the Criminal Code of Canada;

ii) between April 25, 2018 and October 3, 2018, in the City of Kingston in the East Region did, without lawful excuse, possess child pornography in the form of digital video and image files, contrary to s. 163.1(4) of the Criminal Code of Canada; and/or

iii) between April 25, 2018 and October 3, 2018, in the City of Kingston in the East Region did, without lawful excuse, access child pornography in the form of digital video and image files, contrary to s. 164.1(4.1) of the Criminal Code of Canada;

b) between April 25, 2018 and October 3, 2018, you possessed child pornography.

Member’s Plea

The Member admitted the allegations set out in paragraphs #1(a), 1(b), 1(c), #2(a)(i), (ii), (iii) and 2(b) in the Notice of Hearing. The Panel received a written plea inquiry which was signed by the Member. The Panel also conducted an oral plea inquiry and was satisfied that the Member’s admissions were voluntary, informed and unequivocal.

Agreed Statement of Facts

College Counsel and the Member’s Counsel advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads, unedited, as follows:

THE MEMBER

1. Matthew Ormsbee-Posthumus (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) in the Temporary Class on June 26, 2013 until September 18, 2013. The Member registered with CNO as an RN in the General Class on September 18, 2013. The Member was administratively suspended from February 20, 2019, until March 22, 2019, when his certificate of registration expired.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

2. On October 3, 2018, a search warrant was executed at the Member’s home and various digital devices were seized. Police examined the Member’s devices and were able to view the files that were shared, downloaded or partially downloaded by the Member on his laptop between January 14, 2018 and June 20, 2018. The investigation also found further evidence in a browser cache that included photographs meeting the definition of child pornography. Additionally, police located a 22-minute video on an external hard drive. In total, 73 files were discovered by police that met the definition of child pornography.

3. The child pornography material discovered by police was described by one of the investigating officers as involving explicit sexual abuse of young children, infants and one-year-olds, depicting sexual abuse of children over a long period of time, some involving abuse by animals, and the children’s ages ranging from infancy to prepubescent boys and girls.

4. On October 5, 2018, the Member was charged under the Criminal Code of Canada with the following offences:

• On or about April 25, 2018, making available child pornography in the form of digital image and video files, contrary to section 163.1(3) of the Criminal Code of Canada;

• Between April 25, 2018 and October 3, 2018, possessing child pornography in the form of digital video and image files, contrary to section 163.1(4) of the Criminal Code of Canada; and

• Between April 25, 2018, and October 3, 2018, accessing child pornography in the form of digital video and image files, contrary to section 163.1(4.1) of the Criminal Code of Canada.

5. The Member was required as a term, condition, or limitation on his certificate of registration, to report any charge to the Executive Director of CNO pursuant to section 1.5(1)1(ii) of Ontario Regulation 275/94.

6. The Member failed to report the charges under the Criminal Code of Canada to the Executive Director of CNO.

7. On June 7, 2021, the Member pled guilty to possessing child pornography in the form of digital video or image files, contrary to section 163.1(4) of the Criminal Code of Canada. The other two Criminal Code of Canada charges were withdrawn.

8. On April 1, 2022, the Superior Court of Justice sentenced the Member to the following:

• A period of incarceration for 12 months, reduced by two months on account of the pre-trial bail conditions, for a total of 10 months in custody;

• A 20-year Sex Offender Information Registry Act (SOIRA) order;

• A DNA order;

• A forfeiture order with respect to the devices on which the child pornography was found;

• A 10-year section 161 order, including the following conditions:

o Must not attend a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre, unless in company of an adult over 21 years old;

o Must not seek, obtain or continue any paid or unpaid activity that involves being in a position of trust or authority towards persons under the age of 16 years;

o Must not have any contact with a person who is under the age of 16 years, unless supervised pursuant to or under other conditions set by the court;

o Must refrain from using the internet or other digital network unless it is in accordance with conditions set by the court; and

• 3 years of probation including, but not limited to, the following conditions:

o Notify the court or probation officer in advance of any change in name, address, employment or occupation;

o Report to the probation officer as directed;

o Cooperate with the probation officer and sign any releases necessary to permit the probation officer to monitor compliance;

o Reside at a location approved by the probation officer;

o Must not be in the company of or communicate, directly or indirectly, by any means with persons under the age of 18 years, unless in the presence of approved person(s) or other specified exceptions;

o Attend and actively participate in all assessment, counselling or rehabilitative programs as directed and sign releases to enable the probation officer to monitor attendance and completion; and

o Refrain from using the internet or other digital network unless it is in accordance with specified conditions.

9. The Member admits and acknowledges that his failure to report the Criminal Code of Canada charges to the Executive Director of CNO amounts to professional misconduct.

10. The Member further admits and acknowledges that his possession of child pornography between April 25, 2018 and October 3, 2018, is conduct that demonstrates a lack of integrity and is relevant to the practice of nursing, and that, having regard to all circumstances, would be reasonably regarded by members as disgraceful, dishonourable and unprofessional.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

11. The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 1(a), 1(b) and 1(c) of the Notice of Hearing in that he contravened a term, condition or limitation on his certificate of registration, imposed pursuant to section 1.5(1)1.(ii) of Ontario Regulation 275/94, when he failed to report the Criminal Code of Canada charges to the Executive Director of CNO, as described in paragraphs 4 to 6 and 9 above.

12. The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 2 (a)(i), (ii) and (iii) and 2(b) of the Notice of Hearing, and in particular his conduct of possessing child pornography was disgraceful, dishonourable and unprofessional, as described in paragraphs 2 to 10 above.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities based upon clear, cogent and convincing evidence.

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs #1(a), 1(b), 1(c), #2(a)(i), (ii), (iii) and 2(b) of the Notice of Hearing. With respect to allegations #2(a)(i), (ii), (iii) and 2(b), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be disgraceful, dishonourable and unprofessional.

Reasons for Decision

The Panel considered the Agreed Statement of Facts and the Member’s plea and finds that this evidence supports findings of professional misconduct as alleged in the Notice of Hearing.

Allegations #1(a), 1(b) and 1(c) in the Notice of Hearing are supported by paragraphs 4 – 6, 9 and 11 in the Agreed Statement of Facts. On October 5, 2018, the Member was charged with several criminal offences, related to his possession of child pornography. The Member was required by s. 1.5(1),1(ii) of Ontario Regulation 275/94 to report the details of the criminal charges to the Executive Director of the College. The Member admitted that he failed to report these criminal charges to the College. His failure to do so constitutes professional misconduct.

Allegations #2(a)(i), (ii), (iii) and 2(b) in the Notice of Hearing are supported by paragraphs 2 – 10 and 12 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in failing to report the Criminal Code charges to the Executive Director of the College, and the Member’s possession of child pornography between April 25, 2018, and October 3, 2018, is relevant to the practice of nursing as it demonstrates a lack of integrity. The Member’s conduct was unprofessional as it demonstrated a serious and persistent disregard for his professional obligations.

The Panel also finds that the Member’s conduct was dishonourable. The Member’s failure to report the criminal charges to the College demonstrated an element of dishonesty and deceit, and his possession of child pornography demonstrates an element of moral failing and a lack of integrity. The possession of child pornography is criminal conduct, and a gross violation of the ethical standards expected to be upheld by members of the nursing profession. It is incompatible with the duty to promote health, protect vulnerable populations, and act with integrity. The Member knew or ought to have known that his conduct was unacceptable and fell well below the standards of a professional.

Finally, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the nursing profession. The conduct of possessing child pornography casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet. The possession of child pornography fundamentally undermines public confidence in the profession and raises serious concerns regarding the Member’s moral character and judgment.

Penalty

College Counsel and the Member’s Counsel advised that a Joint Submission on Order had been agreed upon and requested that the Panel make the following order:

1. Requiring the Member to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.

2. Directing the Executive Director to immediately revoke the Member’s certificate of registration.

College Submissions on Penalty

College Counsel made submissions which included the following.

College Counsel reviewed the general principles of penalty, including general and specific deterrence, and public protection.

The aggravating factors in this case were:

• The Member’s conduct was intentional;

• The Member’s conduct resulted in significant harm to children; and

• The Member’s conduct discredited the profession as a whole.

The mitigating factors in this case were:

• The Member took accountability for his conduct by making admissions of professional misconduct and entering into an Agreed Statement of Facts and a Joint Submission on Order with the College; and

• The Member has no prior disciplinary history with the College.

College Counsel reviewed the following cases with the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee: CNO v. Dumchin (Discipline Committee, 2015), CNO v. Dumchin, 2016 ONSC 626 (Div Ct), and CNO v. Chaif (Discipline Committee, 2014).

Member’s Submissions on Penalty

The Member’s Counsel indicated that they agreed with the College’s submissions and that since his arrest, the Member has taken and accepts responsibility for his actions and has worked on rehabilitating himself.

Penalty Decision

The Panel accepted the Joint Submission on Order and made the order requested.

Reasons for Penalty Decision

There is a high threshold for departing from a Joint Submission on Order established by the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43. Departing from a joint submission would require a finding that the proposed penalty would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

The Panel concluded that the proposed penalty is not contrary to the public interest and does not bring the administration of justice into disrepute.

The Panel concluded that the proposed penalty is reasonable and in the public interest. It promotes public confidence in the ability of the College to regulate nurses.

The Panel finds that the proposed penalty satisfies the penalty goals of specific and general deterrence and public protection.

The proposed penalty provides for general deterrence through revocation of the Member’s certificate of registration, which sends a powerful message to all members of the profession that such behaviour is not tolerated.

The proposed penalty provides for specific deterrence through revocation of the Member’s certificate of registration and the oral reprimand.

Remediation and rehabilitation are not relevant considerations in this case, as the Member’s certificate of registration has been revoked and he will no longer be permitted to practice nursing.

Overall, the public is protected because the Member will no longer be practising nursing. The Panel finds that while revocation is at the highest end of the range of available penalties, it is appropriate in this case. Possessing child pornography is a serious criminal offence. It can also reflect deeper behavioural concerns that could pose a risk to patient’s safety, especially vulnerable populations such as, in this case children. Revocation is necessary to maintain the integrity of the nursing profession.

The Panel acknowledges that the Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility, which is a mitigating factor.

The penalty is in line with the range of what has been ordered in previous similar cases.

I, Michael Hogard, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.