R.J.D. McRoberts, for accused, appellant. G.A. Lawlor, for the Crown, respondent.

The judgment of the court was delivered by

PHILP J.A.:—The Winnipeg arena is the home of the Jets. The 1993/94 season was a frustrating one, for the team, and for its fans. November 5, 1993, was a particularly frustrating night. The Jets blew an early lead and lost in overtime to the Ottawa Senators. That evening fans had been given sample jars of Kraft peanut butter. After the game was over and the teams had left the ice, fans began to display their frustration by pelting the rink surface with the peanut butter jars.

That is what the accused intended to do — but his throw from the twelfth row was errant. His bottle struck the complainant who was standing in the front row at ice level, causing injury to her.

The accused was charged with the offence of assault with a weapon, the jar of peanut butter.

At trial, Enns Prov. Ct. J. found as a fact that it was the accused's jar that struck the complainant and that the accused did not intend to hit anybody. The trial judge concluded, however, "that there was the intention to apply force in a general sense, and it happened to be particularly against this complainant". The accused was convicted on this basis.

We are of the view that the conviction cannot stand. Without proof of an intention to apply force to the complainant or to another person, there cannot be a conviction for an assault, or as charged in this case, a conviction under s. 267(1)(a) of the Criminal Code of an assault with a weapon.