Uncut diamonds caught in border limbo for 11 years
Owner still fighting to get his gems back
Uncut gems of an Australian diamond merchant have been stuck in bureaucratic limbo at a Canadian border crossing for 11 years. The owner has been fighting ever since to get them back, but no one can resolve his “impossible” conundrum.
Tamba Thomas grew up around diamonds.
Now working as a diamond merchant in Australia, his family once owned diamond- rich land when he was growing up, and he saw first hand the good and the bad that came with it, including, he told court, “violence and threats” against his family.
More than a decade ago, Thomas decided to expand his business into North America and brought diamonds to Canada and the United States to kickstart it.
Bringing diamonds across an international border can be tricky.
There is a concerted international effort to stop the trade in conflict diamonds, often called “blood diamonds.” An international agreement, the Kimberley Process, was enacted following a report by Canadian diplomat Robert Fowler in 2000 highlighting the funding of third world conflicts by the diamond trade.
The Kimberley Process requires a special certificate confirming a diamond is not a conflict gem before it can be legally imported or exported.
The diamonds Thomas sent to Canada and the U. S. all had their Kimberley paperwork in order. Business in Canada, however, wasn’t as good as he had hoped and Thomas decided to concentrate on the U.S. market, according to his account in court documents.
So he came to Canada to gather his gems here and take them to the U.S.
He prepared his Kimberley permits and got on a Greyhound bus to Canada, heading up Interstate 87 to the Canadian border, crossing near Lacolle, Que., about 65 kilometres south of Montreal.
That was Nov. 11, 2009.
At the border crossing, he told officers with the Canada Border Services Agency he was a diamond merchant. He was asked if he had any valuable goods or diamonds with him and he said no.
A border agent then searched his backpack. The officer found four uncut diamonds, totalling 28.13 karats, in a plastic bag. The rough diamonds were seized because they were not reported to the border agency, along with documents he was carrying, including three Kimberley certificates, for investigation.
The diamonds were later valued at $19,800.
Thomas immediately challenged the seizure, saying he forgot the diamonds were in his backpack and didn’t intend to bring them with him to Canada.
As evidence he was an honest merchant, he pointed out he had obtained the proper certificates for the other diamonds he earlier brought to Canada and, now that he planned to take them back, he had obtained the proper Kimberley certificates for those as well.
For two years he argued with CBSA over getting his diamonds back. By then, however, Thomas had been charged criminally with failing to report rough diamonds when entering Canada, and other importation violations, and the gems were held as evidence.
In 2016, Thomas was acquitted of all charges. The Quebec court judge accepted Thomas made a mistake and did not intend to import the gems. The judge ordered the seized diamonds and documents returned to Thomas.
That wasn’t so easy. Three-anda- half years later, Thomas is still fighting to pry his diamonds out of CBSA storage.
CBSA said the diamonds, even though on Canadian soil for years, were never officially imported into
Canada because they were seized at a port of entry and didn’t have Kimberley import certificates.
Thomas contacted the Kimberley Process Office of Canada. Its position was that Kimberley certificates could not be issued for the seized diamonds because they had not lawfully entered Canada, according to court records. As such, the diamonds could not be exported and must be returned to the U.S., where they came from. There was more bad news. The Kimberley office in Canada contacted its counterpart in the U.S. That office said the rough diamonds could not be accepted back because they left without proper authority.
Thomas was told if the diamonds were returned to the U. S. they would be confiscated.
His diamonds were stuck in limbo.
If he collected them from CBSA, he had to immediately take them out of Canada, but without export certificates they couldn’t be removed; since they came into Canada without certificates, they couldn’t be certified here.
Taking them anywhere will put Thomas right back where he is — his gems seized and facing potential legal trouble.
Caught in this unusual trap, Thomas sought help from the Federal Court of Canada, asking for a judicial review of the CBSA’S decision. Since the judge at his criminal trial acquitted him and ordered the diamonds be returned, Thomas argued CBSA needed to comply.
The Canadian government’s position offered no sympathy, saying Thomas was the author of his own misfortune.
William F. Pentney, the Federal Court judge, offered empathy for the conundrum, referring to it as an “impossible situation.”
However, Pentney did not accept that the administrative actions of CBSA needed to comply with the criminal trial judge’s order. In his decision on Feb. 24, Pentney deemed the CBSA’S actions reasonable under the special requirements of diamond exporting.
Thomas’ appeal was dismissed. At last report, the diamonds remained at the Lacolle border station.
Thomas could not be reached for comment.
Bringing diamonds across an international
border can be tricky.