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  • possession accounts for 14 out of 811 casebriefs.

Style of causeRatio

Grosvenor Park Shopping Centre v Waloshin et al (1965) 46 DLR 750 (Sask CA)

Trespass cannot be committed if the premises cannot be said to be in sufficient possession.

The landlord of a premise leased to tenants, together with easements over common areas, and to which the public had an unrestricted invitation to enter, does not have actual possession of the premises and accordingly cannot maintain an action for an injunction based on trespass in respect of picketing carried on by a union against one of the tenants.

Harrison v Carswell, [1976] 2 SCR 200

As per R v Peters, though shopping centres offer an unrestricted invitation to enter, they retain the right to withdraw that offer and therefore the right to control. As such, shopping centres have sufficient possession for trespass protection.

Keron v Cashman (1896), 33 A 1055 (NJ Eq)

Intention and physical control must be concurrent to establish possession.

Marshall v R, [1969] 3 CCC 149 (Alta CA)

In determining possession, per s.4(3) of the Criminal Code, there must be evidence of consent to prove the unlawful act.

Pierson v Post (1805), 3 Cai R 175, 2 Am Dec 264 (NY)

Possession requires that a person have sufficient control over the object. Control does not necessarily mean "complete dominion." Rather, control is subject to the particular context and type of property:
** Mere pursuit of an wild animal does not constitute a legal right to it.
** To acquire possession, the person must mortally wound the animal.

Popov v Hayashi, 2002 WL 31833731, (Cal Superior Ct)

There are three criteria of possession:
** 1 -the object must be lost or abandoned
** 2 -intention to control to the exclusion of others
** 3 -actual physical control
*** If #2 and #3 are met, but actual physical control is prevented by an illegal act, courts may find a pre-possessory right based on equity.
*** physical control may also vary by context, the community of practice, and the object itself.

R v Chalk, 2007 ONCA 815

Knowledge of the criminal aspect of the material is adequate to constitute of possession.

R v Patrick, 2009 SCC 17

Test to determine abandonment of property when a search is conducted by the police and whether that search was reasonable.

R v Peters (1971), 17 DLR (3d) 128

Though shopping centres offer an unrestricted invitation to enter, they retain the right to withdraw that offer and therefore the right to control. As such, shopping centres have sufficient possession for trespass protection.

R v Pham (2005), 77 OR (3d) 401.

In the case of s.4(3) of the Criminal Code, actual possession is not required -- inferred knowledge can lead to a finding of constructive possession.

R v Terrence, [1983] 1 SCR 357

In determining possession, per s.4(3) of the Criminal Code, there must be evidence of control to prove the unlawful act.

The Tubantia [1924] P 78, [1924] All ER 615

Possession requires that a person have sufficient control over the object. Control does not necessarily mean "complete dominion." Rather, control is subject to the particular context and type of property:
** Physically demarcating the area under which a wreck is found, accessing the wreck and sending in an exploration team constitutes sufficient possession in the case of a sunken shipwreck

Trachuk v Olinek (1995), 36 Alta LR (3d) 225 (QB)

As per the Parker case, finders only acquire rights if:
** A. The good is lost or abandoned
** B. The finder takes the object into care and control.

The court will consider the follwing:
** 1. Was the object lost / abandoned?
** 2. Did the finder take the item into care and control?
** 3. Was the item acquired through dishonesty or trespass?
** 4. Were steps taken to reacquaint object with true owner?
** 5. Was the object on the land, or buried?
** 6. Did the occupier of the land have manifest intent over the land where the object was found? (Sufficient possession?)
** 7. Did the occupier have the right to possess the property where the object was found?