Bench Strength: Judging a Century of Tax Avoidance in Canada

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.