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Arguing a Saskatchewan judge fumbled when he used potential pot legalization to justify giving a break to a former university football player caught with 21 pounds of marijuana, the Crown wants jail.

“The new (pending) legislation does not mean all things marijuana are now legal,” federal prosecutor Wade McBride argued before the Saskatchewan Court of Appeal on Thursday.

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The lawyer representing Seamus John Neary not only defended his client’s sentence of probation, but took a second kick at a Charter of Rights argument. He contends a law prohibiting a conditional sentence for such a crime is cruel and unusual punishment — especially given the current government’s stance regarding pot.

“This drug is no longer as big a concern,” John Conroy contended.

Whether or not either side scored with their arguments is unknown. Justices Ralph Ottenbreit, Neal Caldwell and Peter Whitmore reserved decision.