Bench Strength: Judging a Century of Tax Avoidance in Canada Book Review

Full disclosure: I was given a free advance reader copy of this book by Sasha Stolz Publicity in exchange for an honest review.

Since I’m a chick who reads everything, I have looked at books that are pretty niche. In the past, I’ve reviewed titles that focused on subjects like the Caterham Seven, starting up tech businesses, and Groucho Marx’s solo career. But never have I read something as niche as today’s book Bench Strength: Judging a Century of Tax Avoidance by Kerry Harnish. It’s about the tax avoidance cases the Supreme Court of Canada reviewed within the last 100 years. I admire the research, structure, and how much Harnish tries to make the subject digestible for a wider audience, but I couldn’t get into it.

Bench Strength: Judging a Century of Tax Avoidance covers the Supreme Court of Canada’s approach to income tax avoidance cases from 1920 to 2019. Harnish is an expert in tax policy and a former senior official with Finance Canada, and he takes readers 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 that period. He also weaves fascinating anecdotes related to many cases and important historical, political, and economic events that influenced the Supreme Court and the judges deciding on the cases. The book 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 duty, 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 answers those questions while looking at the Supreme Court of Canada’s evolving approach to income tax avoidance.

When I talk about titles that contain very specific subjects, I usually include my point of reference. I do this to show readers where I’m coming from when tackling certain books. In the case of Bench Strength, since the subject matter involves Canadian taxes, I must include my experiences with that, which is nothing. I have no relationship with that because I’m an American. As for taxes, my connection to them only extends to paying them and watching the aptly named Three Stooges short Income Tax Sappy (it’s a good one) to remind myself that I should do my duty as a law-binding citizen every tax season. 

In other words, because of my limited experiences with taxes, let alone Canadian tax law, I could not get into Bench Strength. It also didn’t help that the book itself was written in an academic manner. It’s filled with footnotes and analysis of income tax cases that the Supreme Court of Canada decided. As someone who loves to analyze things, I couldn’t understand what was being said half the time. And, what I did comprehend, I couldn’t bring myself to care. Not even the mention of Enron could save this.

Now, I can’t entirely blame Harnish for this. He’s doing his darndest to get his research out there, and it’s clear that he really wants regular people to know how the Supreme Court of Canada has made decisions on tax cases and how that affects them. After all, he is a tax policy expert and a former senior official with Finance Canada. However, Harnish is between a rock and a hard place when it comes to taxes since barely anybody cares about them, and he’s fully aware of this. In fact, there’s even a line in the book that sums up the general feeling regarding the income tax, which reads, “For almost everyone, income tax is a boring fact of life and death, not a career that inspires, challenges and on occasion frustrates” (p. 253).

Harnish had to do a lot to get people invested in taxes, and I don’t think this book enough. 

On the other hand, I can’t say that this is a bad book. It’s well written for academia. Harnish uses a lot of sources to back up his arguments and includes a bibliography and index. He even has some graphs that sum up the results of every tax avoidance case the Supreme Court of Canada were involved in, especially if they decided in favor of the Crown or the taxpayer. Additionally, the structure is well made. Harnish uses a chronological order to discuss every tax avoidance case from 1920 to 2019. Within that structure, he splits them up before and after the adoption of the Charter of Rights and Freedom in 1982. Moreover, he looks at the cases through the eyes of the chief justices in various periods. The best part of the book was reading about the backstories of each chief justice to see how their backgrounds influenced the decisions in some way. Also, I love how Harnish loathes Mackenzie King – the prime minister of Canada from the 1920s to the 1940s, who did more to serve the Crown as opposed to the people. I didn’t know about him until I read this book. Most importantly, I enjoyed how there’s the constant theme of rights versus duty. As Harnish points out, before 1982, many cases were decided in favor of the Crown because it was believed to be a duty for citizens to pay taxes. After that year, the mentality shifted to being more of a right.

One last thing, there was one case that I was intrigued to hear about. That was the Ernest Stickel (1974) case. In it, an American professor named Ernest Stickel moved his family to Edmonton to teach at the University of Alberta. There was a tax benefit for teachers and professors in temporary positions not exceeding two years. Stickel took advantage of that benefit, but he didn’t leave Canada until three years later. The court ruled in his favor since he taught for two years, and he worked non-teaching gigs for another year, and he remained a U.S. citizen during that time. I found the case to be fascinating.

Bench Strength: Judging a Century of Tax Avoidance by Kerry Harnish is a book that’s not for everyone. It’s well researched and structured, but it’s about Canadian tax cases. If one is familiar with Canadian tax laws and cases, they would like it. If not, it will be a slog to get through. It was for me. Regardless, I would still recommend it for tax experts; business, legal, and economic professors; and anyone who wants to learn more about the Canadian income tax. There have been plenty of niche books that I’ve gotten into. This wasn’t for me sadly.

Subscribe below to get notified when I post new updates. Also feel free to email me here for any review suggestions, ideas, or new titles!