whether the limits on the appellant’s freedom of religion are
demonstrably justified under s. 1 of the Charter.
 Accordingly, there is no need to determine that “inclusion”
is a “Charter value”, and the application judge erred in doing so.
The application judge’s use of the concept instantiates the concerns this court expressed in Gehl v. Canada (Attorney General)
(2017), 138 O.R. (3d) 52,  O.J. No. 1943, 2017 ONCA 319.
 The application judge’s decision brings into sharp relief
the subjective nature of decisions invoking Charter values and the
lack of transparency in the reasoning process leading to their
identification. Invariably, the concept is used to identify a particular moral commitment that the sponsor asserts is not only desirable but should be given additional or decisive weight in legal
reasoning, on the basis that it is entailed or implied by the Charter.
 Labelling a moral commitment as a “Charter value” is,
in practice, a rhetorical move — a result-selective conclusion —
and not the outcome of a transparent analytical process. In
doing so, the sponsor seeks to justify setting apart the desirable
moral commitment as decisive or worthy of a preference in legal
analysis. But whether it is worthy of weight in the proportionality calculus should not depend on rhetoric; the parties’ respective
interests must be analyzed directly. What interests are the
competing moral commitments striving to advance, protect or
instantiate? Are any of the competing moral commitments
Charter rights? If they are, how should we sort out the contest under
the proportionality test in s. 1 of the Charter?
 The school board takes the position that there is no need
for this court to decide that “inclusion” is a Charter value.
I would agree. This is not a surprising position for the board,
since the issue of inclusion remains alive in special education,
20 years after Eaton v. Brant County Board of Education (1996),
31 O.R. (3d) 574,  1 S.C.R. 241,  S.C.J. No. 98. This
is a delicate and sensitive area into which it would be imprudent
to effectively invoke closure by utilizing Charter values, newly
minted or otherwise. The impact would be completely unpredictable, which is another reason to avoid the instantiation of
 My colleague Miller J.A. and I referred to some of these
issues in Gehl, but neither that case nor this case is the one in
which to resolve them.
 I now turn to make some observations about problems in
the application of the Doré/Loyola framework to the discretionary decisions of line decision makers who do not have an adjudicative function.