R v Horse – 2019 SKCA 56 (Leurer):

[32] As I interpret this passage, the appeal court accepted that, rather than being an element of the mens rea of theft, colour of right is like any other positive defence, which need only be disproved by the Crown if there is evidence that discloses an air of reality to it.
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[43] As I interpret Dorosh, the Crown will have met its burden of proving the absence of colour of right whenever there is nothing in the evidence suggesting the existence of the accused’s honest belief as to his or her proprietary or possessory right. On this interpretation, there seems little space between treating the absence of colour of right asserted by an accused as an element of the offence of theft and treating the absence of colour of right as a positive defence. In both cases, the accused must be able to point to some evidence that the issue is a live one at trial. The evidentiary burden falling on an accused in relation to positive defences is the well developed concept of “air of reality”. If there is a difference between this and the interpretation I give to Dorosh, this difference must await a case where the facts animate the need to draw the distinction (if any). Mr. Horse’s case does not present this opportunity. More specifically, nothing in the evidence raised a question of, or “asserted”, Mr. Horse’s colour of right to the cellphone at the point in time that the trial judge held the theft occurred.