Does Henwood have a right to assert his right to possession?
Ontario, Canada
The following excerpt is from Henwood v. Coburn, 2007 ONCA 882 (CanLII):
Henwood may or may not have been asserting his right to possession, but that did not mean that he was necessarily in possession. Asserting a right to possession and possession are not the same thing. As Kellock J. said in Marsh v. Kulchar, 1951 CanLII 56 (SCC), [1952] 1 S.C.R. 330, [1951] S.C.J. No. 44, at p. 335 S.C.J.: When a motor car is stolen from the owner, the thief takes actual physical possession, and thus takes it out of the possession of the owner, although the right to possession remains with the latter. [See Note 3 below]
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