The Canadian military's marching orders for chaplains who counsel perpetrators or victims of sexual misconduct is causing a crisis of conscience for some clergy, federal documents reveal.

A series of morale and welfare reports obtained by CBC News under Access to Information legislation show the issue of pastors being compelled to testify in court has become a matter of increasing unease among military clergy.

"There is concern by chaplains that they are potentially breaching the confidentiality of those receiving spiritual care," said a March 2015 summary prepared by the military chaplain general's office. Moreover, the report said, "the existing framework for legal assistance to chaplains does not provide legal advice for them."

Pastors on bases along the West Coast seemed the most concerned about the ethical dilemma, and at one point they consulted with the regional prosecutor's office to review legal issues related to chaplain confidentiality in courts martial.

Directive from the top

But as far as the military's top spiritual adviser is concerned, the issue is clear-cut.

Brig.-Gen. Guy Chapdelaine has issued a directive that says, with the exception of confessions heard under the sanctity of Roman Catholic reconciliation, pastors are required to disclose what they have been told if a crime has been committed.

"In certain circumstances, there is a duty to report what has been revealed in a counselling situation," said the Oct. 23, 2015, directive, recently obtained by CBC News through Access to Information.

The directive states: "With the exception of an exchange of sacrament reconciliation with a Roman Catholic priest, confidentiality in pastoral care and counselling is not applicable" when the person is a danger to themselves or others, when the incident involves child abuse or when a court orders a pastor to testify.

Further, "all notes and documentation, including all emails concerning the case," may be turned over to the court for "consideration" during the trial.

The chaplains could be called upon to testify, but "will share all information with investigators only with the written consent of the victim."

They should also "encourage, and where appropriate enable" the victim to report incidents.

Prosecutions climbing

The Canadian military has been fighting a protracted battle for more than two years to eliminate sexual assault and harassment within the ranks.

The number of prosecutions has been climbing, increasing the possibility military pastors will be called upon to report and perhaps even testify against an accused.

One retired military chaplain, Phil Ralph, said people seeking counselling often automatically assume the conversation is confidential, when the law provides no such guarantee.

Ralph said that no pastor condones criminal behaviour, but he understands the ethical dilemma.

"If you begin to talk about what is said during a counselling session, nobody will come and talk to you, because they don't think they can trust your word," said Ralph, a Baptist minister who served as a captain in the reserves.

"It's one thing to write that down and another thing to be in that position with a human being in front of you."

Ralph said he tries to address the moral quandary up front by telling the person he's counselling about the legal boundaries.

Duty to report

Lt.-Col. Martine Belanger, a lay minister who advises the military's strategic response team on sexual misconduct, said most pastors do the same thing.

She said she's not aware of any "concern at all" among the clergy and also doesn't believe people will be turned off.

She said military chaplains make it "very clear" to those they are counselling that they have a duty to report.

Belanger said the only time she is aware of pastors showing up in court is when they have accompanied victims to court for moral support.

The Supreme Court of Canada dealt with the issue of pastoral confidentiality in the early 1990s, ruling that the Charter of Rights and Freedoms offers "no blanket privilege covering religious communications."

But the courts, regardless of jurisdiction, have been reluctant to challenge the gap between common law and legal principles set down by the Roman Catholic Church.

The limits of canon law were tested last year south of the border in front of the U.S. Supreme Court, which said Roman Catholic priests are not obliged to break the seal of confession, even in cases of abuse of a minor.

Moral suasion?

Errol Mendes, a University of Ottawa law professor, said there is little legal ground for non-Catholic clergy to stand on, but a solution that seems absent from Chapdelaine's 2015 military directive is the use of moral suasion on a perpetrator, rather than reporting them.

"[Chapdelaine's] type of directive might be counterproductive in terms of encouraging people to talk," Mendes said.

"A sensible solution might be for the pastor to work with the person and get them to 'fess up. Obviously the person wouldn't be telling it unless they've had serious problems with what they've done."