WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
Toronto Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
Mordecai ELEUTHERE
Before Justice C. Faria
Heard on December 16, 2025 and April 1, 2026
Reasons for Sentence released on June 1, 2026
Ari Linds counsel for the Crown
Daniel Marcovitch counsel for the defendant Mordecai ELEUTHERE
1On December 16, 2025, the first day set for his trial, Mordecai Eleuthere pled guilty to surreptitiously observing and video recording SAC while she engaged in sexual activity and then distributing that video and another video of SAC during sexual activity, contrary to ss. 162(1)(b) and 162.1 of the Criminal Code. Mr. Eleuthere was on a probation order at the time, and he pled to breaching the order by not keeping the peace and being of good behaviour on two occasions. The Crown proceeded summarily.
2On April 1, 2026, the parties jointly submitted that an 18-month conditional sentence and an 18-month probation order is appropriate, as well as a DNA order, and a s.110 weapons prohibition, but differ on whether a Sex Offender Information Registration Act (SOIRA) order should issue.
3The Crown submitted these offences are captured by the legislation and the order should issue. He provided supporting caselaw.1
4The Defence submitted there is no connection between the making of a SOIRA order and the statutory purpose of the Act in this case, and the impact of the order would be grossly disproportionate to the public interest in protecting society through registration. He also provided supporting caselaw.2
I. FACTS
5Mr. Eleuthere was friends with Donnell Anderson-Amede. The two men were friends with two women, the victim SAC and her friend RR.
6On January 5, 2024, the two men and the two women met in an underground parking lot of a building in the city of Toronto. Mr. Eleuthere was in his car with RR spending time together. Mr. Anderson-Amede was his car spending time with SAC.
7At one point Mr. Eleuthere left his car, went to Mr. Anderson-Amede’s car, and video-recorded SAC having sex with Mr. Anderson-Amede in the car without her consent.
8On January 11, 2024, SAC was at her friend RR’s home. Mr. Eleuthere was on a call with RR and did not know SAC was listening. There was a disagreement between the parties.
9On January 17, 2024, Mr. Eleuthere was on a group chat with 6 people which included SAC and RR. He posted a link to two videos. One video was the one he had taken of SAC on January 5, 2024, engaged in sexual activity in the car with Mr. Anderson-Amede. The second video was of SAC engaged in sexual intercourse with who he believed to be Mr. Anderson-Amede on another occasion.
10The next day SAC reported the incident to police, and she stated she had safety concerns.
11Mr. Eleuthere was arrested on January 21, 2024. Mr. Eleuthere was on probation at the time with a condition to keep the peace which this conduct breached.
II. Mordecai Eleuthere
12Mr. Eleuthere is 24 years old and was 22 at the time he committed the offences.
13Pursuant to the Pre-Sentence Report (PSR), he is a Canadian citizen and came to Canada as a child with his mother and siblings to get away from his abusive father. He is the youngest of a family of 6. He describes his upbringing as traumatic and grew up without a father figure. His siblings were also not always kind to him.
14During his school years he struggled with bullying, poor attendance, and behavioural issues. He had difficulty adjusting to numerous school environments. He exhibited early anti-social behaviour, poor frustration tolerance, and limited problem-solving skills. However, he overcame these struggles and graduated from high school during the pandemic.
15Mr. Eleuthere has no alcohol or substance abuse issues. He sustained a concussion in 2017 which led to mental health issues that required medication and treatment for a year. He is no longer under any medical care.
16He resides with his mother, and his wife, whom he has known since he was 16 and married 2 years ago. They now have a 5-month-old daughter. Both he and his young wife report having a good marriage.
17Mr. Eleuthere has a criminal record for two counts of armed robbery, and two counts of possession of a weapon for which he was sentenced in December 2022 to an 18-month conditional sentence and 2 years probation.
18Mr. Eleuthere has completed counselling with the Just For Today Sexual Boundary Program. The Report provided details on each session and included a session on voyeurism where Mr. Eleuthere identified the reason for his offending conduct.
19Mr. Eleuthere has made significant progress since the offences. He completed a trade-based automotive program and works in that sector now. His employer and co-worker speak well of him saying that he demonstrates strong work habits. He has started a small business that is expanding via social media and doing volunteer work serving underhoused people.
III. Legal Principles
20Every sentence must be proportionate to the gravity of the offence and the blameworthiness of the offender.
21A sentence should have one or more of the following objectives as stated in s. 718 of the Criminal Code:
- denounce unlawful conduct;
- deter the offender and other persons from committing offences;
- separate offenders from society, where necessary;
- assist in rehabilitating offenders;
- provide reparations for harm done to victims or to the community;
- promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
22I must consider aggravating and mitigating factors that relate to the gravity of the offence and the degree Mr. Eleuthere’s responsibility.
23I must also consider the legislative provisions and intent of ss. 490.012(1)(2) and (3) of the Criminal Code to decide whether a SOIRA order should issue for Mr. Eleuthere. In particular, I must consider the principles enunciated in R. v. Eldon, 2025 ONCA 348.
IV. Analysis
24I consider the following factors to be aggravating:
i. Although not related, Mr. Eleuthere has a criminal record and had been sentenced to a conditional sentence just over a year before he committed these offences.
ii. He distributed not one, but two videos of SAC engaging in sexual activity.
iii. He posted both videos to a group chat of 6 people who knew SAC.
iv. The violation of SAC’s dignity was significant given the nature of both videos which impacted her psychologically and her sense of safety.
v. He committed the offences while on probation.
25In mitigation, I consider the following factors:
i. Mr. Eleuthere pled guilty which obviated the need for SAC to testify to what is an obviously very personal matter involving graphic sexual activity. The plea also saved resources and demonstrates accountability, although it was on the first day of trial, and the Crown had a strong case.
ii. Mr. Eleuthere is still quite youthful.
iii. He has a stable and supportive family environment.
iv. He has a positive social circle and does valuable volunteer work.
v. He is employed with a good work ethic.
vi. Most significantly, Mr. Eleuthere has tried to address his criminal offending by attending sexual behaviour counselling. He is dealing with the sources of criminal behaviour and the harmful impact of his actions.
vii. He expressed his remorse in counselling and apologized during his allocution.
26The paramount principles in this case are deterrence and denunciation. These are very serious offences that violate the dignity, autonomy, privacy, and psychological safety and security of the complainant. These offences normally warrant custodial disposition.
27However, given Mr. Eleuthere’s youthfulness and his counselling the principles of restraint and rehabilitation are also applicable.
28I am also mindful of the R. v. Morris, 2021 ONCA principles. Mr. Eleuthere is a young black man who grew up in Toronto. He was raised by a single mother with a large family to support. He experienced financial stress and residential instability. He and his family fled domestic violence at the hands of his father, and he did not have a positive male role model in his life. He experienced negative peer influence. These circumstances affected his education. These are all well-documented lived experiences of marginalization that include racism and immigrant acclimatization.
29The parties submit, and I agree that Mr. Eleuthere is eligible for a conditional sentence pursuant to the five pre-conditions contained in s. 742.1.
i. None of these offences are excluded offences.
ii. None of these offences attract a minimum sentence.
iii. Neither a suspended sentence nor a penitentiary sentence is appropriate in this case.
iv. Although Mr. Eleuthere has a criminal record, he successfully served a previous conditional sentence and was on a release on these charges with no allegation of a breach thereby demonstrating he is not a danger to the public.
30The fifth condition is whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing as set out in ss. 718 to 718.2. Specifically, is a conditional sentence sufficient to reflect the denunciation and deterrence required in this case.
31I agree with the parties that it is. In R. v. Proulx, 2000 SCC 5, at para. 22, the Supreme Court specifically stated that a conditional sentence is “also a punitive sanction capable of achieving the objectives of denunciation and deterrence.” In addition, the Court stated at para. 117: "[P]unitive conditions such as house arrest should be the norm, not the exception."
32In this case, given the 18-month length of the recommended sentence, and the period of house arrest included as well as a curfew, the sentence will be a significant restriction on Mr. Eleuthere’s liberty. It does reflect the denunciation and deterrence required for these serious charges, particularly as the sentence will affect Mr. Eleuthere’s daily activity, where he goes, when, and for how long, with whom, and only with prior written approval of his supervisor while he continues to work, get counselling, volunteer and care for his family.
SOIRA
33The dispute, as indicated earlier, is whether a SOIRA order should issue.
34A SOIRA order is mandatory only in the circumstances set out in s. 490.012(1) and (2).
35Where those provisions do not apply, as in Mr. Eleuthere’s case, the court is to proceed pursuant to s. 490.012(3), which establishes a discretionary regime. The order is required “unless the court is satisfied the person has established that:
(a) there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under that Act; or
(b) the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act.
36Distribution of an intimate image without consent, s. 162.1, is a designated primary offence. Mr. Eleuthere is thus eligible to be on a SOIRA order based on this offence alone.
37Voyeurism, s. 162(1), is a designated secondary offence with an additional preliminary requirement pursuant to s. 490.012(5) which reads:
(5) A court shall make an order under any of subsections (1) to (3) in respect of a secondary offence only if the prosecutor applies for the order and establishes beyond a reasonable doubt that the person committed the secondary offence with the intent to commit a primary offence.
38On the count of voyeurism, a secondary designated offence, I find that although the Crown applied for the order, the Crown did not meet the second requirement of s. 490.012(5) which is to establish beyond a reasonable doubt that Mr. Eleuthere committed this voyeurism offence with the intent to commit a primary offence, in this case the distribution offence.
39The facts as read in, and accepted, did not include any reference to Mr. Eleuthere’s intention when he went to observe and record SAC having sex with Mr. Anderson-Amede, as to what he intended to do with the recording. In fact, the reference to a disagreement between the parties after that voyeuristic recording was made, appears to lead another reasonable conclusion – that Mr. Eleuthere did not record the activity with the intent to distribute it, but after the disagreement, decided to.
40However, even if the Crown establishes the intent requirement under s. 490.012(5), where neither s. 490.012(1) nor (2) applies, I must still proceed with the analysis required by s. 490.012(3).
41In this analysis, I must consider the factors enumerated in s. 490.012(4):
(4) In determining whether to make an order under subsection (3) in respect of a person, the court shall consider
(a) the nature and seriousness of the designated offence;
(b) the victim’s age and other personal characteristics;
(c) the nature and circumstances of the relationship between the person and the victim;
(d) the personal characteristics and circumstances of the person;
(e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;
(f) the opinions of experts who have examined the person; and
(g) any other factors that the court considers relevant.
42I take note that the Ontario Court of Appeal in Eldon emphasized that SOIRA orders are presumptive and the threshold for refusing one is high (at paras. 44, and 74).
43The starting point is that the order shall be imposed unless it can be established that the criteria under s. 490.012(3) (a) or (b) are met as it is recognized that “sexual offending is one of several empirically validated predictors of increased sexual recidivism”. This also accords with the “recognition that the prevention and investigation of sexual offending, through the assistance of NSOR, is in the public interest (at para. 52).”
44The analysis must be approached from this presumptive lens.
45My review of the relevant factors as they apply to this case is as follows.
46The nature and seriousness of the offences are clear on their face. However, a closer analysis does require an evaluation on the continuum of gravity. There were two videos. Very short in duration. The faces of the parties are not seen on the video provided to the court. 3 The link to the videos were posted to was limited to 6: not an insignificant, number but not widely distributed either. In my view, the nature and seriousness of the designated offences is low to medium.
47The victim is youthful, but an adult, similar in age to Mr. Eleuthere.
48Mr. Eleuthere and the victim knew each other as they shared a social circle of mutual friends, RR and Mr. Anderson-Amede. They were not involved with each other. There is no significant age difference or relational power imbalance. The breach of trust was within a friendship.
49Mr. Eleuthere was only 22 years old at the time. He has overcome significant personal challenges, including overcoming numerous and long-standing difficulties during his childhood, and his adolescence. He was able to overcome his educational problems and graduated. He has gone back to school and learned a trade. He has obtained a job and positive recognition for a work ethic. He has surrounded himself with familial support, gotten married and is parenting a child.
50Mr. Eleuthere has a criminal conviction, but it is unrelated, and he was able to serve his conditional sentence without a breach. He has been on a release without a breach since his arrest 2.5 years ago.
51There is no expert report opining on Mr. Eleuthere’s risk to re-offend, however, the in-depth Just For Today Sexual Behavioural Program Report provides sufficient, detailed, and well articulated information about the reasons for Mr. Eleuthere’s offending behaviour and what he has done to address them. The report opined that Mr. Eleuthere’s offending was due to maladaptive attempts to fulfill unmet needs. His personal, cultural, environmental, and historic environments were identified and explored as contributing factors to his offending. During his counselling, Mr. Eleuthere gained insight, engaged in cognitive-behavioural therapy, and developed frameworks to implement his newfound understanding of his behaviour so as to avoid re-offending. Given the circumstances of the offences, the impetus that led to the conduct, his insight, his remorse, and his demonstrated efforts to implement approaches to ensure he does not repeat this conduct, the Report leads to the inference that Mr. Eleuthere is at low risk to re-offend, and I so find he is at low risk to re-offend.
52These factors, when assessed in the context of the entirety of the circumstances of the offences Mr. Eleuthere committed, his youthfulness, his remorse and accountability, the lack of any related criminal history, his family support, his positive social circumstances, the counselling he undertook, and the inference of low risk, the evidence is that Mr. Eleuthere should be exempt form a SOIRA order.
53I turn to whether there is any connection between the making of the order and the purpose of helping police service prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders.
54Mr. Eleuthere’s offenses are definitively sexually related, but they appear to have been spontaneous and impulsive because of immaturity and numerous personal maladaptive tendencies as a result of his youthfulness, his peers, and the environment he grew up in. Moreover, the Just For Today report was very specific about Mr. Eleuthere’s learning what caused his offending, and his demonstrated addressing of those causes. There appears to be no connection between making Mr. Eleuthere subject to a SOIRA order and the police’s ability to prevent and investigate crimes of a sexual nature. There is no indication that Mr. Eleuthere will re-offend or has such a deep-seated problem with this type of conduct that it is not already therapeutically addressed.
55In order to avoid the order, Mr. Eleuthere must also satisfy me that it would be grossly disproportionate to the public interest in protecting society through registration. Again, Eldon is of assistance.
56“Grossly disproportionate” in the DNA context has been interpreted to mean “clearly and substantially”. Applying it in this context, Mr. Eleuthere must establish that the public interest is clearly and substantially inferior to the impact of the order on Mr. Eleuthere including on his privacy and liberty (Eldon at para. 64)
57The public interest in protecting society from crimes of a sexual nature is very high. However, this interest must be, at least to some extent, realistic vis-à-vis Mr. Eleuthere and the purpose of the order. And again, I turn to both the nature of the offences and the Just For Today report outlining Mr. Eleuthere’s offending, the reasons for his offending, and what he has done to address those reasons to assess whether Mr. Eleuthere has met this prong of his burden. In my view, he has.
58A 20 year registration and reporting order, even with a 10 year option to apply to terminate the order pursuant to s. 490.015()(b), for a 24 year old man who has identified the reasons for his offending, minimized the environmental support for the offending, and participated in cognitive therapy to get at the root of and resolve the cultural, environmental, immature, historic and familial reasons for his offending would have a “grossly disproportionate” impact on his liberty and privacy, even as it is diminished by his conviction.
59The facts in Eldon are distinguishable from those before me. Mr. Eldon, who had a long criminal record, offered an unhoused 15-year-old girl food, shelter and drugs. He lured her into a room and made her perform forced fellatio and then forced her to have non-consensual sex without a condom. The victim was a minor, the offender more than double her age, the power imbalance was obvious, her groomed and lured the victim into being alone, he exploited her significant vulnerability and sexually violated her repeatedly and in a hugely sexually invasive manner.
60Courts have exempted offenders from a SOIRA order when persuaded that the nature and seriousness of the offences, the relationship between the offender and the victim, the offender’s personal circumstances and criminal history, and a low risk to re-offend do not warrant the order be made.
61A case in point is LaCaille4 Mr. LaCaille forcibly kissed and groped a work colleague. He was a single father of three and a non-permanent resident facing collateral immigration consequences. His conduct was found to fall on the lower end of the spectrum, he was not in a position of trust, he was employed with no criminal record, expressed remorse and participated in counselling. The court concluded that a SOIRA order would not meaningfully assist police in preventing or investigating similar offences and would disproportionately impact the offender.
62Mr. Eleuthere is similarly situated, and in comparison, to the other offenders in the cases provided by the defence, more favourably situated in comparison.
63I recognize both the statutory and jurisprudential presumption in favour of registration, however, I find on the evidence, that in this case, the presumption has been rebutted.
64I will therefore decline to make a SOIRA order.
V. Sentence
65I sentence Mordecai Eleuthere to an 18-month conditional sentence with the first 6 months served under house arrest, the second 6 months to be served with a curfew, and the final 6 months with statutory terms. He will also complete 40 hours of community service during his sentence. He will also be subject to an 18-month probation order, with terms. During the entire 36 months he will be directed to take counselling for sexual behaviours, trauma and mental health while signing releases that permit both his conditional sentence supervisor and his probation officer to monitor his attendance and completion of these programs. Additional terms will be included as recommended by both parties.
66In addition, I will order Mr. Eleuthere to provide a sample of his DNA today in this courthouse, and he will be prohibited from possessing a weapon pursuant to a s. 110 order for 10 years. As he is supporting his child and not able to pay rent, the victim fine surcharge would cause him undue hardship, and I waive it.
67Finally, as already explained, I will decline the Crown’s request for a SOIRA order.
Released: June 1, 2026
Signed: Justice Cidalia C. G. Faria
Footnotes
- R. v. Eldon, 2025 ONCA 348, R. v. Calpito, 2017 ONCJ 129, R. v. A.C., 2017 ONCJ 317, R. v. J.S., 2018 ONCJ 82, and R. v. C.D.V., 2024 ONCA 226.
- R. v. LaCaille, 2025 ONSC 1919, R. v. Shokouh, 2023 ONSC 1848; R. v. H.P. 2023 ONSC 4808; and R. v. J.G. 2024 ONCJ 42.
- This was originally a joint Information with a co-accused, and several pre-trial motions were heard which included the court viewing one video.
- R. v. La Caille, 2025 ONSC 1919