Kerry Harnish, an expert in tax policy and a former senior official with Finance Canada, provides an authoritative account of the Supreme Court of Canada’s approach to income tax avoidance from 1920 to 2019.

He takes us on a journey exploring Canada’s national income tax system, through the opinions of the Court’s nine most influential judges in income tax over the period. Weaved into the narrative are fascinating anecdotes related to many cases and important historical, political, and economic events that likely influenced the Supreme Court and its judges when deciding the disputes.

Backed by statistical analysis, Bench Strength reveals that the Supreme Court and its judges denied income tax avoidance in 83% of the disputes decided before the Charter of Rights and Freedoms was enacted in April 1982. However, since then, the Court and its judges have allowed income tax avoidance in 73% of the disputes. Does a cultural shift emphasizing individual rights over obligations, and the enactment of the Charter in 1982, explain this reversal in the Supreme Court’s approach to income tax avoidance in the Charter era?

Bench Strength is a must-read for those who care about tax and want to better understand the Supreme Court of Canada’s evolving approach to income tax avoidance.

KERRY HARNISH spent most of his career at Finance Canada, where he developed income tax policy, and drafted legislation. Kerry has also been a tax avoidance auditor for the Canada Revenue Agency in Nova Scotia. Most recently, he has been a National Advisor on Tax Avoidance for the CRA. Before moving to Ottawa in 1990, Kerry graduated from St. Mary’s University’s school of commerce and obtained law and MBA degrees from Dalhousie University, co-owned a small business and was an adjunct lecturer of business law in St. Mary’s accounting program. He has also completed the former Canadian Institute of Chartered Accountants’ In-Depth Course on Taxation. The Alberta Law Review has published two income tax papers by Kerry.

Kerry Harnish's profile page

“In all the years Kerry worked with me, he never researched anything halfway–it was always in-depth, to the point that brought out insights that occasionally you didn’t want to know because it contradicted where you wanted to conclude. But his work was always value added to the process.”
—Len Farber, retired General Director of the Tax Policy Branch, Department of Finance and formerly with the global law firm Norton Rose Fulbright

“The historical context in Bench Strength with respect to the Supreme Court’s decisions–pre-Charter and post-Charter–is fascinating and illuminating. I learned a lot by reading Kerry’s well-researched book and no doubt it will impact my continuing taxation career. This book should be mandatory reading for taxation students and senior practitioners alike.”
—Kim G C Moody, FCPA, TEP, Founder of Moodys Tax / Moodys Private Client, Speaker, Author, Coach

“Bench Strength is truly a whodunnit about the history of tax avoidance in Canada and a must-read for anyone bent on studying, litigating, or deciding tax avoidance disputes.”
—Michael O’Connor, CPA, CA, former Senior Corporate Tax Executive

“Bench Strength gives a comprehensive history of SCC tax avoidance jurisprudence that tosses the tables of the tax establishment, dares them to ignore their heritage, and invites students to question how this story was largely forgotten.”
—Edward Short, CPA, CMA, retired Chief (Director) of the Personal, Business and Property Income Group of the Department of Finance’s Tax Legislation Division (Tax Policy Branch)

“Bench Strength is a fascinating book, and a must-read for anyone concerned about tax avoidance in Canada.”
—Allan Lanthier, former senior partner of Ernst & Young and rated as Canada’s leading tax adviser

“There was a time when the most difficult question in the whole of the law, in Canada as elsewhere, was the definition of “income”. But that is no longer the case, for several decades ago that question was surpassed by the difficulty of distinguishing between tax avoidance (against the law, in countries with a general anti-avoidance rule or GAAR) and acceptable tax planning (which the law must recognize, if absurdity is to be avoided). This landmark book addresses tax avoidance, both pre- and post-GAAR, as approached by some of Canada’s most distinguished judges over a period of almost a century. It’s a magisterial work of scholarship, illuminating as to what the law is, as to what it ought to be, and as to the workings of the Canadian Supreme Court.”
—Michael Littlewood, Professor of Law at the University of Auckland Faculty of Law, and authority on New Zealand tax law, Hong Kong tax law, tax policy, and tax history.

“With its original approach based on a historical and biographical narrative, Kerry Harnish's book offers a relevant insight into a less frequently studied dimension of the contribution of Supreme Court justices to the evolution of tax law. A highly recommended read for lawyers and tax experts, in training or with experience!”
—Lyne Latulippe, professor of tax law at the Université de Sherbrooke and principal researcher at the Research Chair in Taxation and Public Finance

"Avec son approche originale fondée sur un récit historique et biographique, l'ouvrage de Kerry Harnish offre un éclairage pertinent sur une dimension moins étudiée de la contribution des juges de la Cour suprême à l'évolution du droit fiscal. Une lecture hautement recommandée aux juristes et fiscalistes, en formation ou expérimentés!"
—Lyne Latulippe, professeure titulaire de fiscalité à l’université de Sherbrooke et chercheure principale à la Chaire en fiscalité et en finances publiques