The appellant argued that the trial judge improperly used a statement made by the accused prior to being informed of section 10(b) to convict. The officer testified that he said to the appellant, "I think you have had too much to drink," and she replied, "I think you are right." The appellant could not recall the exchange but was certain that she did not say that. The trial judge did not err. The judge did not use the contents of the statement to convict the accused but rather used the fact that she was unable to recall the same at trial in assessing her credibility. R. v. Steeves, 2009 CanLII 67417, leave to appeal refused 2010 ONCA 711.